dvd-discuss.archive.0008100640 764 764 22163415 7153152753 15372 0ustar wseltzerwseltzerFrom dvd-discuss-owner@eon.law.harvard.edu Tue Aug 1 00:09:41 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA17629 for dvd-discuss-outgoing; Tue, 1 Aug 2000 00:09:41 -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 AAA17626 for ; Tue, 1 Aug 2000 00:09:39 -0400 Received: from 209-122-212-185.s566.tnt7.lnhva.md.dialup.rcn.com ([209.122.212.185]) by smtp03.mrf.mail.rcn.net with esmtp (Exim 3.15 #2) id 13JTMk-0005eY-00 for dvd-discuss@eon.law.harvard.edu; Tue, 01 Aug 2000 00:09:18 -0400 Date: Tue, 01 Aug 2000 00:08:02 EDT From: Jeremy Erwin To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] first amendment defense 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, 31 Jul 2000, Consilgere@cs.com wrote: > Date: Mon, 31 Jul 2000 23:04:38 EDT > To: dvd-discuss@eon.law.harvard.edu > From: Consilgere@cs.com > Reply-To: dvd-discuss@eon.law.harvard.edu > Subject: Re: [dvd-discuss] first amendment defense > > By that logic, shooting someone can't be deemed illegal because it can be > > expressive. There has to be a middle ground. Not everything with > expressiveness is protected. What Logic? Who are you responding to? It's fairly simple to argue that since actions are controlled by a rational thinking mind, all actions are expressive of the rational thinking mind. It is also trivial to argue the reductio ad absurdam-- if all actions are protected, anarchy results. Nonetheless, certain actions are properly speech. For isnstance, the action of writing a letter is protected. So is the action of burning a flag. Both actions could be said to be dominated by symbolic content rather than utilitarian content. There have been many efforts to delineate the boundery between speech and action-- but such efforts are neccesarily complicated, and are not served well by reductio ad absurdam. > I would submit to you, that a reasonable compromise would be that source > code > is protected iff it cannot be compiled / interpreted / whatever in its > current state. That would make pseudocode protected, as well as hard > copies > of source code. That should suffice any issues Computer Scientists have > with > free expression. As for the remaining source / object code, it should be > > treated as a physical object. You're forgetting a number of things. Natural language programming has been a hot topic in CS ever since the computer was invented. If I was programming a computer in the days before Fortran, or Algol, I would have to express myself in Assembly language. Today, of course, such code would be looked upon as being somehow less expressive than C or Basic. Yet for the time, it would have been the closest thing to plain english. Now, of course, I might be able to write code in avery verbose language, and be able to compile or interpret it very easily. Several decades from now,I look forward to using verbal conversation to program a simulation. Your differentiation between hardcopy and "computer code" is also shortsighted. When I am writing this email, I am not typing words on my selectric, later to scan them in. When you recieve this email, you will not recieve a gif image of my email. Instead, I am typing them into my computer, in a format that the computer can readily "understand". This does not diminish the expressive content of my message. As for pseudocode-- well, one man's pseudocode is another man's code. > I feel like saying this is going to generate some ill feelings, so > disclaimer > here: DMCA is bad law, but it has nothing to do with free speech. What are you disclaiming? Why is 17 USC 1201 bad law? And why does your argument not rely on any doctrine of free speech? From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 1 00:38:25 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA18628 for dvd-discuss-outgoing; Tue, 1 Aug 2000 00:38:25 -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 AAA18625 for ; Tue, 1 Aug 2000 00:38:13 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id AAA19679 for dvd-discuss@eon.law.harvard.edu; Tue, 1 Aug 2000 00:42:20 -0400 Date: Tue, 1 Aug 2000 00:42:15 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] review of latest "Authority" doc Message-ID: <20000801004215.A19612@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 I like the latest "Authority of the copyright owner" document by Robert and Bryan, at http://www.ai.mit.edu/people/rst/dmca/auth/auth.html I think it draws together quite plainly many points we have brought up. I wonder about a few things (references would be easier if the lines were numbered). Under "Pay-per-view cable": * "Circumvention" on our present reading, would consist of measures which defeat the above check, by, for instance, fooling the cable company into downloading a key when the user hasn't paid for a program, or filching keys from another customer's set-top box. Devil's advocate: why isn't DeCSS "filching keys"? (Maybe we need to explain more about how CSS uses title keys and player keys to decrypt. We have to make it clear that neither using a set-top box legally nor Xing nor DeCSS do anything different, functionally.) This point appears a little later, under "CSS, DeCSS and..." The word "encryption" is brought up, but then ignored while there is a discussion first of "access control." Perhaps CSS "access control" could be temporarily identified with "decoding of title keys on the purchased disk"? Then "encryption" could be discussed, in terms of "scrambling," without being technical--your point about MPEG needs to be higher up. Then the discussion of "False, pretextual encryption" could be much shorter, I think. And the discussion of "Encryption not required for access control" is mostly irrelevant, is it not? In the section, "Authority not granted to the party performing the encryption," we need to state outright that plaintiffs are deliberately obfuscating the terms of "authority"--their authority model, it is plain, has to be that of licensing players. Whereas, if the interpretation of "circumvention" and "authority" is that of keeping people from playing counterfeit discs or copying them, then licensing at first sale cannot work--but neither can this other means of licensing--because one can still play a counterfeit disc on a licensed player, since it contains the right keys. (However, there are effective means of security--it is just that MPAA relied on some technical means they should not have relied on. Then when this was exposed and they learned of it, instead of correcting their security program, they tried to suppress information by suing the magazine 2600.) We also need to bring together the separate points about reverse engineering, freedom from patent or licensing control, first amendment protection of computer code and the foolishness of trying to make expressions illegal, and the importance to the development of the LiViD player of the DeCSS reverse engineering. We need to establish that DeCSS has a use beyond descrambling and copying. Finally, we need to say more about the other uses of LiViD players and DVD players and recorders under Linux. If the authority model of DVD-CCA is followed, then the movie industry would have control over production of all DVD players, even if they were intended only to record computer data--if in some way somebody could use them to re-record movie DVDs. (It's not just, I believe, that DVD movies are most of the market--who knows what comes next, books, music, computer data from the space program, or what.) Would not Senator Ashcroft's video card have to be licensed too, since it might be construed as an apparatus to bypass access and copy the video stream, if it is not required to enforce Macrovision? (Encryption being only one part of control.) And a short explanation of how Linux is developed and how nobody including Linus could ever guarantee that the DVD-CCA license restrictions could ever be carried out, needs to be part of the record. Otherwise I think it is great stuff. We have to find the right footnotes but at least the spelling and grammar is mostly good. -- "Eric" Eric Eldred Eldritch Press mailto:Eldred@EldritchPress.org http://www.eldritchpress.org/EricEldred.vcf From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 1 00:50:12 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA18764 for dvd-discuss-outgoing; Tue, 1 Aug 2000 00:50:12 -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 AAA18760 for ; Tue, 1 Aug 2000 00:50:01 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id AAA19695 for dvd-discuss@eon.law.harvard.edu; Tue, 1 Aug 2000 00:54:08 -0400 Date: Tue, 1 Aug 2000 00:54:03 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] first amendment defense Message-ID: <20000801005403.B19612@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 Tue, Aug 01, 2000 at 12:08:02AM -0400 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, Aug 01, 2000 at 12:08:02AM -0400, Jeremy Erwin wrote: > > From: Consilgere@cs.com >... > > I feel like saying this is going to generate some ill feelings, so > > disclaimer > > here: DMCA is bad law, but it has nothing to do with free speech. > > What are you disclaiming? Why is 17 USC 1201 bad law? And why does your > argument not rely on any doctrine of free speech? I agree the free speech argument needs to be brought up forcefully. It is time that those who are responsible for technology and explaining it to the public start to distinguish between human speech acts and some sort of "intelligent" behavior of machines. Machines are tools, they cannot be responsible nor can they be excused--it's a category mistake. Banning DeCSS as computer code (or source code, or a t-shirt) is the same thing as suppressing speech by humans. It is true that there might be some occasion when a judge might be warranted to do that. But in this case he should be bound to take the First Amendment seriously and not issue a declaratory judgment without hearing evidence. But I also agree with the remaining point, in some respect. It would be a pity if plaintiff's case were rejected solely because it impinges on defendant's First Amendment rights, either as a citizen or as a publisher. There are too many good reasons why the entire DMCA should be struck down, and the judge should not be tempted to ignore them and deliver a restricted verdict. This case has managed to bring out enough evidence so it would be fair to ask the judge to decide the act simply "too contradictory" to enforce in any way. Congress needs a lesson from this smart judge. It's up to us to supply him with the entire lesson plan and not just the answer key. From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 1 01:46:47 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id BAA20584 for dvd-discuss-outgoing; Tue, 1 Aug 2000 01:46:47 -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 BAA20581 for ; Tue, 1 Aug 2000 01:46:46 -0400 Received: from sites.inka.de (puric.inka.de [212.227.14.17]) by mail.inka.de with esmtp id 13JUsk-0000fX-00; Tue, 1 Aug 2000 07:46:26 +0200 Received: from localhost by sites.inka.de with local id 13JUsn-0007Xq-00; Tue, 1 Aug 2000 07:46:29 +0200 Date: Tue, 1 Aug 2000 07:46:28 +0200 From: Sham Gardner To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] antitrust arguments Message-ID: <20000801074628.A16495@inka.de> References: <200007312325.TAA10264@soggy-fibers.ai.mit.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0i In-Reply-To: <200007312325.TAA10264@soggy-fibers.ai.mit.edu>; from rst@ai.mit.edu on Mon, Jul 31, 2000 at 07:25:25PM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Mon, Jul 31, 2000 at 07:25:25PM -0400, Robert S. Thau wrote: > What Gold is saying here is that they aren't discriminating --- the > same terms are available to everyone. I suspect you're probably right, but since the contracts aren't being disclosed it's not realy possible to be sure that they are all identical. Sham -- http://sites.inka.de/risctaker/DeCSS/ "The first speech censored, the first thought forbidden, the first freedom denied, chains us all irrevocably." (Jean-Luc Picard) From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 1 02:23:11 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id CAA20790 for dvd-discuss-outgoing; Tue, 1 Aug 2000 02:23:11 -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 CAA20787 for ; Tue, 1 Aug 2000 02:23:10 -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 e717QDP06348 for ; Tue, 1 Aug 2000 02:26:13 -0500 (EST) Date: Tue, 1 Aug 2000 02:26:13 -0500 (EST) Message-Id: <200008010726.e717QDP06348@outgoing.themail.com> Received-From: mail.TheMail.com To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] emphasis on the "real" crime X-Priority: 3 Authorized-User: mw@TheMail.com IP-Address: 209.210.168.33 MIME-Version: 1.0 Content-Type: multipart/mixed; boundary="___TheMail_88_Boundary___" Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --___TheMail_88_Boundary___ Content-type: text/plain Information is a great thing. With the CSS source, DeCSS came to be. I am aware the DMCA attemps to restrict the circumventing of encryption/device. I think we all know the 1st amendment by now(congress shall enact no law that restricts speech)... But maybe it will help if we put a little emphasis on what the courts and the MPAA MUST AGREE as the "true culprit". The person(s) who leaked the CSS code should be blamed. Can that help? (just tossing around some late ideas) How can the courts and MPAA argue this one. It was, after all, the responsibility of MPAA to keep CSS secret, right. So, maybe it's the MPAA's first priority to discover who the anonymous leaker is... not that I want that person prosecuted, but it could be beneficial to mention this... - marcia wilbur __________________________________________________________________ Make A Buck Or Two @ TheMail.com - Free Internet Email Sign-up today at http://www.themail.com/ref.htm?ref=44883 --___TheMail_88_Boundary___-- From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 1 08:28:17 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id IAA23362 for dvd-discuss-outgoing; Tue, 1 Aug 2000 08:28:17 -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 IAA23358 for ; Tue, 1 Aug 2000 08:28:05 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id IAA19926 for dvd-discuss@eon.law.harvard.edu; Tue, 1 Aug 2000 08:32:16 -0400 Date: Tue, 1 Aug 2000 08:32:11 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] fair use again Message-ID: <20000801083211.C19612@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 I've been thinking more about Robert and Bryan's paper and have to question why Fair Use is not emphasized more. Maybe we have been entranced by the plaintiffs' obfuscation. Here are a couple of statements we need to discuss: How, then, is authority communicated to the user? Not by contract; recall that Dean Marks of the MPAA was candid in acknowledging this, in colloquy with David Carson of the LOC: 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. The only contract they have is with the player manufacturer, a CSS licensee -- Panasonic, in our example -- not with the user. Note that a contractual grant of authority would be easy to arrange, as a shrink-wrap license on either the players or the DVDs. In fact, software DVD players typically do come with shrink-wrapped licenses. So why don't they provide a license? Because that still would not convey authority in the way they want. DVD-CCA wants to license players and discs as a proxy for issuing licenses to the user for use. If they issued licenses to users then they would have to recognize fair use. But they don't. Let's see how, and why this might be a fatal error in the law. 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. 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. Curious language. Why doesn't the viewer of a VHS cassette have the right to view it with a scanning electron microscope or on a PAL player? Not because of a license--and also not because the copyright holder has the right to refuse them that right--but because it is technically difficult or impossible. This is really the crux of the DMCA. MPAA was confronted with user rights in Sony v Universal Studios and Vault v Quaid that clearly stated the purchaser of digital content has the right to make a backup copy for archival or personal use. This right, importantly, was not a right delegated by the copyright holder, nor a right given by Congress, but a natural right of fair use implied by the copyright law under the Constitution. There is no way that subsequent acts of Congress could take away that right. And there is clear evidence from the legislative history of two important points: MPAA clearly intended DMCA to do this, and at the same time Congress put provisions in the law which are contradictory--stating that nothing in the law took away any fair use, but at the same time making illegal any technology used for that purpose. Look at Vault v Quaid for a moment. This is a case where the copyright holder used encryption and a password scheme to prevent the user from making any copies. This case affirmed the right of the legitimate owner to make a backup archival copy of software-- and to use and buy whatever technical means were necessary to do this--and so Quaid had the right to develop and sell their cracking software to users. DMCA does not tackle this headon. Instead, it at the same time does two things: allow fair use (on the surface) but also deny anyone the right to provide means of decryption for this fair use. 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 other requirement for a technological measure to be an ``effective access control'' that it ``require the application of information, or a process or a treatment, with the authority of the copyright owner, to gain access to [a] work.'' If surrendering those rights is not to the taste of certain copyright owners (including, evidently, the movie studios), the law does give them an option: they may sell their works, as is commonly done with software, pursuant to an explicit license agreement which imposes whatever additional restrictions are to their taste; contract law, then, rather than copyright law applies. And such a model of sales would impose scant burden on the plaintiffs; following the practice of software shrink-wrap license agreements, they can simply notify the buyer of the contract in a prominent way, and allow the purchaser to return the work if they don't agree with the terms. Here we almost recommend that plaintiffs use a license to prevent fair use. But this would not be allowed by the Constitution, as recognized by Sony v Universal Studios and Vault v Quaid. I propose we take out the last paragraph and rewrite it. Look at this thought experiment. Instead of the "user," or "legitimate purchaser of a valid DVD," think of a copyright holder. Let's assume famous mystery writer Stephen Queen writes a book which is made into a movie. Let's assume he is economically powerful enough to get the movie studio to agree to a contract that states he will acquire the full rights to the movie after 10 years. So the studio puts the movie on a DVD under CSS. After 10 years Queen gets the movie back and wants to release it without CSS. Studios refuse to allow him a license from DVD-CCA to do this--maybe on the grounds that doing so would harm sales of the encrypted version. So Queen attempts to buy some software, let's say DeCSS, so he can resume full rights to his own property, that he owns the copyright for. According to plaintiffs' interpretation of 1201, he could not do this. Even though DeCSS might have an important legitimate use under 1201 that has nothing to do with infringing copyright, he still cannot buy DeCSS because it is illegal. Suppose Queen loses his case, based on the idea that the strict clause in 1201 overrides the weaker exceptions. Then assume that in 100 years the movie enjoys a surprising renewal of interest. The Library of Congress wishes to reissue the movie on DVD, but without encryption. Suppose by that time the studio has gone out of business and the film is an orphan film. No means of decrypytion can be located and it is still illegal to develop or distribute any means to do so--the programmers who could do so have all been burned at the stake. The public owns the movie, but cannot enjoy any use even though it cannot be otherwise than fair. Plaintiffs have won a perpetual copyright contrary to the Constitution. Or suppose (and this is real) that a publisher of print books issues a novel by Stephen Queen on DVD with CSS. A blind reader of the novel cannot print out the novel because CSS prevents that. If there were some technical way to bypass the encryption and print it to a Braille printer or speech synthesis hardware, then blind user could read the book. But in preventing any copies from being made, publisher also prevents a wide range of fair use--use which is demonstrably fair, and which shows a wide range of exceptions that need to be applied to the law instead of the strict construction of plaintiffs. I have to assume there is some sort of judicial rule that states a federal judge cannot pick and choose which separate parts of a law to enforce, but must take it as a whole. Congress definitely intended the fair use and other exceptions to apply. So the judge has a choice: either interpret fair use liberally, which makes nonsense of the anti-circumvention technology clause, or decide to throw out the entire law for inconsistency. I think this is what Samuelson was trying to get at. She says either a judge or Congress needs to rewrite the law. But Judge Kaplan, I feel, should not do so, but instead return it to Congress as contradictory and unenforceable. How does this sound? -- "Eric" Eric Eldred Eldritch Press mailto:Eldred@EldritchPress.org http://www.eldritchpress.org/EricEldred.vcf From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 1 09:01:40 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA24050 for dvd-discuss-outgoing; Tue, 1 Aug 2000 09:01:40 -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 JAA24047 for ; Tue, 1 Aug 2000 09:01:39 -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 JAA10635 for ; Tue, 1 Aug 2000 09:01:19 -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 IAA17034 for ; Tue, 1 Aug 2000 08:59:57 -0400 (EDT) Mime-Version: 1.0 Message-Id: In-Reply-To: References: <20000731003131.A18532@eldritchpress.org> <20000731011153.C18532@eldritchpress.org> Date: Tue, 1 Aug 2000 08:59:51 -0400 To: dvd-discuss@eon.law.harvard.edu From: "Arnold G. Reinhold" Subject: Re: [dvd-discuss] NYT article by Amy Harmon 7/31/2000 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 12:20 AM -0500 7/31/2000, Ben Byer wrote: > > 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 The dead-tree edition of Monday (7/31/2000)'s New York Times that was delivered to me here in Cambridge, MA has separate pictures of Eric Corley and the real Jon Johansen. There is also a photo of the T-shirt. The article is on the front page of the business section (p. B1) Arnold Reinhold From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 1 09:09:54 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA24166 for dvd-discuss-outgoing; Tue, 1 Aug 2000 09:09:54 -0400 Received: from mail.travel-net.com (root@mail.travel-net.com [204.92.71.26]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id JAA24163 for ; Tue, 1 Aug 2000 09:09:53 -0400 Received: from travel-net.com (trj37.travel-net.com [207.176.160.37]) by mail.travel-net.com (8.9.3/8.9.3) with ESMTP id IAA13520 for ; Tue, 1 Aug 2000 08:08:19 -0400 Message-ID: <3986CC09.BA05E84@travel-net.com> Date: Tue, 01 Aug 2000 09:09:29 -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] fair use again References: <20000801083211.C19612@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: > > I've been thinking more about Robert and Bryan's paper > and have to question why Fair Use is not emphasized more. > Maybe we have been entranced by the plaintiffs' obfuscation. > > Here are a couple of statements we need to discuss: > > How, then, is authority communicated to the user? Not by > contract; recall that Dean Marks of the MPAA was candid in > acknowledging this, in colloquy with David Carson of the LOC: > > 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. > > The only contract they have is with the player manufacturer, a > CSS licensee -- Panasonic, in our example -- not with the user. > > Note that a contractual grant of authority would be easy to > arrange, as a shrink-wrap license on either the players or the > DVDs. In fact, software DVD players typically do come with > shrink-wrapped licenses. > > So why don't they provide a license? Because that still would > not convey authority in the way they want. DVD-CCA wants to > license players and discs as a proxy for issuing licenses to the > user for use. If they issued licenses to users then they would > have to recognize fair use. But they don't. Let's see how, and > why this might be a fatal error in the law. > > 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. > 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. > > Curious language. Why doesn't the viewer of a VHS cassette > have the right to view it with a scanning electron microscope > or on a PAL player? Not because of a license--and also not > because the copyright holder has the right to refuse them that > right--but because it is technically difficult or impossible. > OK. I was able to follow up to here, but... > This is really the crux of the DMCA. MPAA was confronted with > user rights in Sony v Universal Studios and Vault v Quaid that > clearly stated the purchaser of digital content has the right > to make a backup copy for archival or personal use. This right, > importantly, was not a right delegated by the copyright holder, > nor a right given by Congress, but a natural right of fair use > implied by the copyright law under the Constitution. There is > no way that subsequent acts of Congress could take away that > right. And there is clear evidence from the legislative history > of two important points: MPAA clearly intended DMCA to do this, > and at the same time Congress put provisions in the law which > are contradictory--stating that nothing in the law took away > any fair use, but at the same time making illegal any technology > used for that purpose. ummmmmmmmmmm I think theres a bit of a leap here. Just because there is a right (natural or other) in the copyright act or the constitution does not necessarily mean it cant be circumscribed, eroded or re-defined. In an extreme case, even the constitution can be ameneded (thats where all those numbers came from. It is possible, albeit more difficult than changing an ordinary run-o-the-mill statute). In this respect I think its necessary to avoid imprecion in phrases like "but a natural right of fair use implied by the copyright law under the Constitution. There is no way that subsequent acts of Congress could take away that right. ". US Congress can and has amended the copyright act a few times, so its unfair to say that 'no way subsequent acts of Congress could take away..". Same applies for the Constitution (IANAUSCL) but I doubt its impossible to amend the US constitution either. > no problem with the rest... > Look at Vault v Quaid for a moment. This is a case where the > copyright holder used encryption and a password scheme to prevent > the user from making any copies. This case affirmed the right of > the legitimate owner to make a backup archival copy of software-- > and to use and buy whatever technical means were necessary to > do this--and so Quaid had the right to develop and sell their > cracking software to users. > > DMCA does not tackle this headon. Instead, it at the same time > does two things: allow fair use (on the surface) but also deny > anyone the right to provide means of decryption for this fair > use. > > 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 other requirement for a > technological measure to be an ``effective access control'' that > it ``require the application of information, or a process or a > treatment, with the authority of the copyright owner, to gain > access to [a] work.'' > > If surrendering those rights is not to the taste of certain > copyright owners (including, evidently, the movie studios), the > law does give them an option: they may sell their works, as is > commonly done with software, pursuant to an explicit license > agreement which imposes whatever additional restrictions are to > their taste; contract law, then, rather than copyright law > applies. And such a model of sales would impose scant burden on > the plaintiffs; following the practice of software shrink-wrap > license agreements, they can simply notify the buyer of the > contract in a prominent way, and allow the purchaser to return > the work if they don't agree with the terms. > > Here we almost recommend that plaintiffs use a license to prevent > fair use. But this would not be allowed by the Constitution, as > recognized by Sony v Universal Studios and Vault v Quaid. I > propose we take out the last paragraph and rewrite it. > > Look at this thought experiment. Instead of the "user," or > "legitimate purchaser of a valid DVD," think of a copyright > holder. Let's assume famous mystery writer Stephen Queen writes > a book which is made into a movie. Let's assume he is > economically powerful enough to get the movie studio to agree to > a contract that states he will acquire the full rights to the > movie after 10 years. So the studio puts the movie on a DVD > under CSS. After 10 years Queen gets the movie back and wants to > release it without CSS. Studios refuse to allow him a license > from DVD-CCA to do this--maybe on the grounds that doing so would > harm sales of the encrypted version. So Queen attempts to buy > some software, let's say DeCSS, so he can resume full rights to > his own property, that he owns the copyright for. According to > plaintiffs' interpretation of 1201, he could not do this. Even > though DeCSS might have an important legitimate use under 1201 > that has nothing to do with infringing copyright, he still cannot > buy DeCSS because it is illegal. > > Suppose Queen loses his case, based on the idea that the strict > clause in 1201 overrides the weaker exceptions. Then assume that > in 100 years the movie enjoys a surprising renewal of interest. > The Library of Congress wishes to reissue the movie on DVD, but > without encryption. Suppose by that time the studio has gone out > of business and the film is an orphan film. No means of > decrypytion can be located and it is still illegal to develop or > distribute any means to do so--the programmers who could do so > have all been burned at the stake. The public owns the movie, but > cannot enjoy any use even though it cannot be otherwise than > fair. Plaintiffs have won a perpetual copyright contrary to the > Constitution. > > Or suppose (and this is real) that a publisher of print books > issues a novel by Stephen Queen on DVD with CSS. A blind reader > of the novel cannot print out the novel because CSS prevents > that. If there were some technical way to bypass the encryption > and print it to a Braille printer or speech synthesis hardware, > then blind user could read the book. But in preventing any > copies from being made, publisher also prevents a wide range of > fair use--use which is demonstrably fair, and which shows a wide > range of exceptions that need to be applied to the law instead of > the strict construction of plaintiffs. > > I have to assume there is some sort of judicial rule that states > a federal judge cannot pick and choose which separate parts of a > law to enforce, but must take it as a whole. Congress > definitely intended the fair use and other exceptions to apply. > So the judge has a choice: either interpret fair use liberally, > which makes nonsense of the anti-circumvention technology clause, > or decide to throw out the entire law for inconsistency. I think > this is what Samuelson was trying to get at. She says either a > judge or Congress needs to rewrite the law. But Judge Kaplan, I > feel, should not do so, but instead return it to Congress as > contradictory and unenforceable. > > How does this sound? > > -- > "Eric" Eric Eldred Eldritch Press > mailto:Eldred@EldritchPress.org > http://www.eldritchpress.org/EricEldred.vcf -- 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 Aug 1 09:20:08 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA24238 for dvd-discuss-outgoing; Tue, 1 Aug 2000 09:20:08 -0400 Received: from tbird.iworld.com ([63.236.72.237]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id JAA24235 for ; Tue, 1 Aug 2000 09:20:07 -0400 Received: (from nobody@localhost) by tbird.iworld.com (8.10.2/8.10.2) id e71DJw820693; Tue, 1 Aug 2000 09:19:58 -0400 Date: Tue, 1 Aug 2000 09:19:58 -0400 Message-Id: <200008011319.e71DJw820693@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] emphasis on the real crime Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu mw@themail.com wrote: >Information is a great thing. With the CSS source, DeCSS came to be. > >I am aware the DMCA attemps to restrict the circumventing of encryption/device. I think we all know the 1st amendment by now(congress shall enact no law that restricts speech)... > >But maybe it will help if we put a little emphasis on what the courts and the MPAA MUST AGREE as the "true culprit". > >The person(s) who leaked the CSS code should be blamed. > >Can that help? (just tossing around some late ideas) > >How can the courts and MPAA argue this one. It was, after all, the responsibility of MPAA to keep CSS secret, right. >So, maybe it's the MPAA's first priority to discover who the anonymous leaker is... not that I want that person prosecuted, but it could be beneficial to mention this... The question is whether it was leaked or it was just weak. I think it was weak. So the anonymous person isn't someone who stole a secret but someone who discovered it. I do however think the MPAA should make a stand on what they're attacking and who and what provides authority. They've been fence sitting. As for the judge's dismissal of the antitrust argument, well it'll be interesting if he keeps that position if the MPAA says the device is the point of authority. Rares >- marcia wilbur > > > > >__________________________________________________________________ >Make A Buck Or Two @ TheMail.com - Free Internet Email >Sign-up today at http://www.themail.com/ref.htm?ref=44883 > > > >--___TheMail_88_Boundary___-- > > 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 Tue Aug 1 09:31:53 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA24462 for dvd-discuss-outgoing; Tue, 1 Aug 2000 09:31:53 -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 JAA24459 for ; Tue, 1 Aug 2000 09:31:52 -0400 From: Consilgere@cs.com Received: from Consilgere@cs.com by csimo01.mx.aol.com (mail_out_v27.12.) id x.4e.91932a5 (3897) for ; Tue, 1 Aug 2000 09:30:56 -0400 (EDT) Message-ID: <4e.91932a5.26b82b0f@cs.com> Date: Tue, 1 Aug 2000 09:30:55 EDT Subject: Re: [dvd-discuss] first amendment defense 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'll respond to 3 messages @ once: 1.) My argument goes something like this. a.) There are legitimate uses for DeCSS that don't involve speech @ all. An example for me is using DeCSS to create MPEG files I can take with me to another machine... not all my machines have DVD players. The same concept as copying a CD to a tape for a car. When you buy an artistic work, you by the right to the recording, regardless of the media its on. Fair Use. Plain and Simple. And I don't believe that is necessarily linked to free speech. The government generally doesn't regulate anything without a compelling interest. And Internet Regulation is a compelling interest. 2.) I once took an algorithms class where all our assignments had to be in pseudcode. That was about 30 people. It would have been extremely difficult if not impossible to write a compiler to interpret 30 unique styles of pseudocode. 3.) I'll tell you why Doe 1's legal status should change. If I gave you a do-it-yourself nuclear weapon kit, it would be illegal. If I gave you a blueprint of a nuclear weapon, it would be protected. Why? Because you can't make a nuclear weapon out of just blueprints. You need the raw materials. Source code IS the raw material for a program. The government can regulate things, even speech, when there is a compelling government interest. And seeing it looks like computers are here to stay, regulating the Internet within the U.S. is a compelling interest. The reason they haven't is because no-one in Washington with any power knows how it works. I get the feeling the Engineering community simply doesn't care about law enforcement on the Internet. All I seem to see about in these issues is civil liberties, civil liberties, civil liberties. I never hear anything that actually gives a helping hand to any sort of law enforcement organization. When will we realize that its no longer just a toy for us to share scientific data? If we have to share it with people who will abuse it, we need a way to enforce laws against abusing it. From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 1 09:57:15 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA25063 for dvd-discuss-outgoing; Tue, 1 Aug 2000 09:57:15 -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 JAA25060 for ; Tue, 1 Aug 2000 09:57:14 -0400 Received: from 209-122-203-9.s263.tnt6.lnhva.md.dialup.rcn.com ([209.122.203.9]) by smtp03.mrf.mail.rcn.net with esmtp (Exim 3.15 #2) id 13JcXC-0002hE-00 for dvd-discuss@eon.law.harvard.edu; Tue, 01 Aug 2000 09:56:44 -0400 Mime-Version: 1.0 X-Sender: jerwin@osf1.gmu.edu Message-Id: In-Reply-To: <200008010726.e717QDP06348@outgoing.themail.com> References: <200008010726.e717QDP06348@outgoing.themail.com> Date: Tue, 1 Aug 2000 09:54:38 -0400 To: dvd-discuss@eon.law.harvard.edu From: Jeremy Erwin Subject: Re: [dvd-discuss] emphasis on the "real" crime 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 >Information is a great thing. With the CSS source, DeCSS came to be. Which source code? Obviously, DeCSS had source code, but theat source code was only publically released after DeCSS came on the scene. MORE reversed engineered CSS not because source code was released, but, in part because one or more of the keys was visible. Stevenson used the source code of DeCSS to cryptoanalyze the CSS. It was from there that the modern forms of css-cat emerged... >I am aware the DMCA attemps to restrict the circumventing of >encryption/device. I think we all know the 1st amendment by >now(congress shall enact no law that restricts speech)... > >But maybe it will help if we put a little emphasis on what the >courts and the MPAA MUST AGREE as the "true culprit". Well, yes. Goldstein is a scapegoat, an example, if you will. And if I follow Kaplan's line of argument from Tice, someone who might well bear joint liability with a host of unanamed, and never prosecuted imitators. Personally, I joined this group, not out of any great love for Goldstein, but rather to defend css-cat (and libcss) > >The person(s) who leaked the CSS code should be blamed. By whom? By ourselves? If we believe the DVDCCA, css-cat and DeCSS are the result of misappropriation of trade secrets. . But in fact, it was reverse engineered. Of course, if you belive MORE was somehow a MPAA front organization--well.. >Jeremy Erwin From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 1 11:17:23 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA25845 for dvd-discuss-outgoing; Tue, 1 Aug 2000 11:17:23 -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 LAA25842 for ; Tue, 1 Aug 2000 11:17:22 -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 LAA07292 for ; Tue, 1 Aug 2000 11:17:03 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id LAA13325; Tue, 1 Aug 2000 11:17:02 -0400 (EDT) Date: Tue, 1 Aug 2000 11:17:02 -0400 (EDT) Message-Id: <200008011517.LAA13325@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] review of latest "Authority" doc In-Reply-To: <20000801004215.A19612@eldritchpress.org> References: <20000801004215.A19612@eldritchpress.org> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Eric Eldred writes: > I wonder about a few things (references would be > easier if the lines were numbered). Numbered version of the TeX source in http://www.ai.mit.edu/people/rst/dmca/auth.txt though the numbers will change in successive drafts. > Under "Pay-per-view cable": > * "Circumvention" on our present reading, would consist > of measures which defeat the above check, by, for instance, > fooling the cable company into downloading a key when the > user hasn't paid for a program, or filching keys from > another customer's set-top box. > > Devil's advocate: why isn't DeCSS "filching keys"? > > (Maybe we need to explain more about how CSS uses title keys > and player keys to decrypt. We have to make it clear that > neither using a set-top box legally nor Xing nor DeCSS do > anything different, functionally.) I try to discuss this point in my section on "False, pretextual encryption"; what about that discussion is unsatisfactory? > This point appears a little later, under "CSS, DeCSS and..." > > The word "encryption" is brought up, but then ignored while > there is a discussion first of "access control." Perhaps > CSS "access control" could be temporarily identified with > "decoding of title keys on the purchased disk"? But "CSS access control" is an oxymoron; how can a phrase without a referent be identified with anything? > Then "encryption" could be discussed, in terms of "scrambling," > without being technical--your point about MPEG needs to be > higher up. Then the discussion of "False, pretextual > encryption" could be much shorter, I think. And the > discussion of "Encryption not required for access control" > is mostly irrelevant, is it not? I'm really not sure what you're getting at here --- the "Encryption not required for access control" section really boils down to the point about MPEG. It could perhaps be moved ahead of the detailed discussion of CSS "cryptography", but --- perhaps this is the programmer in me speaking --- I feel uncomfortable not showing in some technical detail that CSS does in fact function the way that Marks describes it, as market control and not access control. > In the section, "Authority not granted to the party > performing the encryption," we need to state outright that > plaintiffs are deliberately obfuscating the terms of > "authority"--their authority model, it is plain, has to > be that of licensing players. Whereas, if the interpretation > of "circumvention" and "authority" is that of keeping > people from playing counterfeit discs or copying them, then > licensing at first sale cannot work--but neither can this > other means of licensing--because one can still play a > counterfeit disc on a licensed player, since it contains > the right keys. (However, there are effective means of > security--it is just that MPAA relied on some technical > means they should not have relied on. Then when this > was exposed and they learned of it, instead of correcting > their security program, they tried to suppress information > by suing the magazine 2600.) Ummm... this is the point of the first sale section, which discusses how the plaintiffs could have remedied the problem by supplying a shrink-wrap license with the DVDs, but chose not to do so. > We also need to bring together the separate points about > reverse engineering, freedom from patent or licensing control, > first amendment protection of computer code and the foolishness > of trying to make expressions illegal, and the importance to > the development of the LiViD player of the DeCSS reverse > engineering. We need to establish that DeCSS has a use > beyond descrambling and copying. We do need to establsh that alternative CSS implementations, including DeCSS, have a use beyond descrambling and coypring --- presumably in the facts of the case at the top. I've been avoiding mentioning LiViD specifically because I'm trying to avoid the appearance of open-source special pleading; the reason I talk about region coding a lot is to emphasize that even a closed-source DVD player development might have reasons for not wanting a DVDCCA license. But I guess it's impossible to avoid completely; it's one of the facts of the case, and we can't run away from it. As for "bringing things together", where and how? Bear in mind that when all of the "need quote here" bits are replaced with real quotes we're probably around thirty pages. > Finally, we need to say more about the other uses of LiViD > players and DVD players and recorders under Linux. If the > authority model of DVD-CCA is followed, then the movie > industry would have control over production of all DVD > players, even if they were intended only to record computer > data--if in some way somebody could use them to re-record > movie DVDs. (It's not just, I believe, that DVD movies are most > of the market--who knows what comes next, books, music, > computer data from the space program, or what.) Would not > Senator Ashcroft's video card have to be licensed too, since > it might be construed as an apparatus to bypass access and > copy the video stream, if it is not required to enforce > Macrovision? (Encryption being only one part of control.) Well, yes --- that's why I quote the bit about the video card. But I don't see that it's necessary to drag LiViD in there; I think it's more effective when discussing legislative intent to just let them speak for themselves, at length, so no one can see we are twisting their words or taking them out of context. > And a short explanation of how Linux is developed and how > nobody including Linus could ever guarantee that the DVD-CCA > license restrictions could ever be carried out, needs to be > part of the record. Hard to do without having the license. And they have given licenses to players developed for Linux, in any event, which may (we can't know) have exceptions. This *is* open source special pleading (there's nothing in the law directly which says that there *have* to be players for an open source OS, and I don't think many judges, particularly not Kaplan, would be sympathetic to attempts to read it in). We have much stronger arguments, and I personally prefer to stick to those. > Otherwise I think it is great stuff. We have to find the > right footnotes but at least the spelling and grammar is > mostly good. Thanks for the comments. rst From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 1 11:38:51 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA26266 for dvd-discuss-outgoing; Tue, 1 Aug 2000 11:38:51 -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 LAA26263 for ; Tue, 1 Aug 2000 11:38:50 -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 LAA10043 for ; Tue, 1 Aug 2000 11:38:32 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id LAA13427; Tue, 1 Aug 2000 11:38:31 -0400 (EDT) Date: Tue, 1 Aug 2000 11:38:31 -0400 (EDT) Message-Id: <200008011538.LAA13427@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] fair use again In-Reply-To: <20000801083211.C19612@eldritchpress.org> References: <20000801083211.C19612@eldritchpress.org> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Eric Eldred writes: > I've been thinking more about Robert and Bryan's paper > and have to question why Fair Use is not emphasized more. > Maybe we have been entranced by the plaintiffs' obfuscation. Fair use isn't emphasized, or even discussed, because that's not the topic --- the thing is intended, at least by me, as an in-depth discussion of authorization, not an overview of problems with the law as a whole. (I've been nervous about fair-use arguments generally because it's hard to argue on the basis of the facts of the case --- there is no fair use of CSS-protected content in evidence, so if we're raising the point it looks like we're making things up and blowing smoke. But in the authority paper, it's just off topic). > 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. > 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. > > Curious language. Why doesn't the viewer of a VHS cassette > have the right to view it with a scanning electron microscope > or on a PAL player? Not because of a license--and also not > because the copyright holder has the right to refuse them that > right--but because it is technically difficult or impossible. It isn't technically difficult at all to put a DVD on an SEM if you happen to have one, and be skilled in its use. This is actually a pretty good point, which I might want to toss in to my own discussion of that quote; it makes the sweeping nature of the control claimed by the MPAA much clearer. > Here we almost recommend that plaintiffs use a license to prevent > fair use. But this would not be allowed by the Constitution, as > recognized by Sony v Universal Studios and Vault v Quaid. I > propose we take out the last paragraph and rewrite it. FWIW, the license agreements on DVDs which I recommend are exactly parallel to software license agreements, which in some cases do restrain speech. (You may not have been around when I raised the issue of the Oracle license agreements, which bans speech by forbidding the licensee from disclosing the results of any performance tests which they perform on the software). If you want to argue that those licensing regimes are unconstitutional, please, be my guest. They do govern distribution of copyrighted content. But take them head-on, because any court which ruled against the DMCA on those grounds would be invalidating just about every commercial software license agreement in existence, and would know it. They won't do this casually. As with the "restraint of trade because prevents open-source competition" argument, this is stretch argument not so much because of the immediate facts of this case, as because a ruling on this basis would overturn so much *other* settled law. Besides, if they want to slap such a license on DVDs, that will have two effects. First, it would expose a tying arrangement which is clearly abusive, by the Morton Salt standard. Second, it would allow every consumer to read the restrictions, and they would gag on it. > Look at this thought experiment. Instead of the "user," or > "legitimate purchaser of a valid DVD," think of a copyright > holder. Let's assume famous mystery writer Stephen Queen writes > a book which is made into a movie. Let's assume he is > economically powerful enough to get the movie studio to agree to > a contract that states he will acquire the full rights to the > movie after 10 years. So the studio puts the movie on a DVD > under CSS. After 10 years Queen gets the movie back and wants to > release it without CSS. Studios refuse to allow him a license > from DVD-CCA to do this--maybe on the grounds that doing so would > harm sales of the encrypted version. So Queen attempts to buy > some software, let's say DeCSS, so he can resume full rights to > his own property, that he owns the copyright for. According to > plaintiffs' interpretation of 1201, he could not do this. Even > though DeCSS might have an important legitimate use under 1201 > that has nothing to do with infringing copyright, he still cannot > buy DeCSS because it is illegal. He can put it on unencrypted DVDs regardless. And they do claim to issue licenses to all comers. > Suppose Queen loses his case, based on the idea that the strict > clause in 1201 overrides the weaker exceptions. Then assume that > in 100 years the movie enjoys a surprising renewal of interest. > The Library of Congress wishes to reissue the movie on DVD, but > without encryption. Suppose by that time the studio has gone out > of business and the film is an orphan film. No means of > decrypytion can be located and it is still illegal to develop or > distribute any means to do so--the programmers who could do so > have all been burned at the stake. The public owns the movie, but > cannot enjoy any use even though it cannot be otherwise than > fair. Plaintiffs have won a perpetual copyright contrary to the > Constitution. An argument which does not require fair use --- I do cover perpetual rights. > Or suppose (and this is real) that a publisher of print books > issues a novel by Stephen Queen on DVD with CSS. A blind reader > of the novel cannot print out the novel because CSS prevents > that. If there were some technical way to bypass the encryption > and print it to a Braille printer or speech synthesis hardware, > then blind user could read the book. But in preventing any > copies from being made, publisher also prevents a wide range of > fair use--use which is demonstrably fair, and which shows a wide > range of exceptions that need to be applied to the law instead of > the strict construction of plaintiffs. Not quite; the protection system on the Steven King ebook wasn't CSS. > I have to assume there is some sort of judicial rule that states > a federal judge cannot pick and choose which separate parts of a > law to enforce, but must take it as a whole. Congress > definitely intended the fair use and other exceptions to apply. > So the judge has a choice: either interpret fair use liberally, > which makes nonsense of the anti-circumvention technology clause, > or decide to throw out the entire law for inconsistency. I think > this is what Samuelson was trying to get at. She says either a > judge or Congress needs to rewrite the law. But Judge Kaplan, I > feel, should not do so, but instead return it to Congress as > contradictory and unenforceable. > > How does this sound? Like an argument that we might want to revisit at higher stages of appeal, with a more sympathetic judge; I think Kaplan won't bite. Fair use is, I acknowledge, a real problem with the law. But, once again, there's no fair use in evidence, and a lot of judges won't be patient with hypothetical situations. rst From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 1 11:41:44 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA26354 for dvd-discuss-outgoing; Tue, 1 Aug 2000 11:41:44 -0400 Received: from mail2.onetouch.com (mail2.onetouch.com [205.180.182.6]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id LAA26351 for ; Tue, 1 Aug 2000 11:41:42 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id ; Tue, 1 Aug 2000 08:41:39 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1D7E@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] fair use again Date: Tue, 1 Aug 2000 08:41:37 -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: Dan Steinberg [mailto:dstein@travel-net.com] > Sent: Tuesday, August 01, 2000 6:09 AM > To: dvd-discuss@eon.law.harvard.edu > Subject: Re: [dvd-discuss] fair use again > > > > > Eric Eldred wrote: > > > > I've been thinking more about Robert and Bryan's paper > > and have to question why Fair Use is not emphasized more. > > Maybe we have been entranced by the plaintiffs' obfuscation. > > > > Here are a couple of statements we need to discuss: > > > > How, then, is authority communicated to the user? Not by > > contract; recall that Dean Marks of the MPAA was candid in > > acknowledging this, in colloquy with David Carson of the LOC: > > > > 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. > > > > The only contract they have is with the player manufacturer, a > > CSS licensee -- Panasonic, in our example -- not with the user. > > > > Note that a contractual grant of authority would be easy to > > arrange, as a shrink-wrap license on either the players or the > > DVDs. In fact, software DVD players typically do come with > > shrink-wrapped licenses. > > > > So why don't they provide a license? Because that still would > > not convey authority in the way they want. DVD-CCA wants to > > license players and discs as a proxy for issuing licenses to the > > user for use. If they issued licenses to users then they would > > have to recognize fair use. But they don't. Let's see how, and > > why this might be a fatal error in the law. > > > > 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. He thinks wrong. "Media shifting" is a recognized fair use. > > 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. > > > > Curious language. Why doesn't the viewer of a VHS cassette > > have the right to view it with a scanning electron microscope > > or on a PAL player? Not because of a license--and also not > > because the copyright holder has the right to refuse them that > > right--but because it is technically difficult or impossible. > > > OK. I was able to follow up to here, but... > > > This is really the crux of the DMCA. MPAA was confronted with > > user rights in Sony v Universal Studios and Vault v Quaid that > > clearly stated the purchaser of digital content has the right > > to make a backup copy for archival or personal use. This right, > > importantly, was not a right delegated by the copyright holder, > > nor a right given by Congress, but a natural right of fair use > > implied by the copyright law under the Constitution. There is > > no way that subsequent acts of Congress could take away that > > right. And there is clear evidence from the legislative history > > of two important points: MPAA clearly intended DMCA to do this, > > and at the same time Congress put provisions in the law which > > are contradictory--stating that nothing in the law took away > > any fair use, but at the same time making illegal any technology > > used for that purpose. > > > ummmmmmmmmmm I think theres a bit of a leap here. Just because there > is a right (natural or other) in the copyright act or the constitution > does not necessarily mean it cant be circumscribed, eroded or > re-defined. In an extreme case, even the constitution can be ameneded > (thats where all those numbers came from. It is possible, albeit more > difficult than changing an ordinary run-o-the-mill statute). In this > respect I think its necessary to avoid imprecion in phrases like "but > a natural right of fair use > implied by the copyright law under the Constitution. There is > no way that subsequent acts of Congress could take away that > right. ". US Congress can and has amended the copyright act a few > times, so its unfair to say that 'no way subsequent acts of Congress > could take away..". Same applies for the Constitution (IANAUSCL) but I > doubt its impossible to amend the US constitution either. Moreover, there is a clause in the DMCA itself that states that it does not override fair 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 Tue Aug 1 11:47:14 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA26482 for dvd-discuss-outgoing; Tue, 1 Aug 2000 11:47:14 -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 LAA26479 for ; Tue, 1 Aug 2000 11:47:13 -0400 Received: from mit.edu (h0050da62b39d.ne.mediaone.net [24.147.219.153]) by chmls06.mediaone.net (8.8.7/8.8.7) with ESMTP id LAA27102; Tue, 1 Aug 2000 11:46:48 -0400 (EDT) Message-ID: <3986F135.C1CB2F69@mit.edu> Date: Tue, 01 Aug 2000 11:48:06 -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] review of latest "Authority" doc References: <20000801004215.A19612@eldritchpress.org> <200008011517.LAA13325@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: > > > And a short explanation of how Linux is developed and how > > nobody including Linus could ever guarantee that the DVD-CCA > > license restrictions could ever be carried out, needs to be > > part of the record. > > Hard to do without having the license. And they have given licenses > to players developed for Linux, in any event, which may (we can't > know) have exceptions. > > This *is* open source special pleading (there's nothing in the law > directly which says that there *have* to be players for an open source > OS, and I don't think many judges, particularly not Kaplan, would be > sympathetic to attempts to read it in). We have much stronger > arguments, and I personally prefer to stick to those. I don't see this as open-source special pleading. This is pointing out the plaintiffs have been big, fat liars, which I see as always useful. Both DVD CCA and plaintiffs have stated that the CSS licensing regime imposes no special burdens on CSS implementations for open-source systems such as Linux (they might not be open-source, but there are no other issues). If we can show that there are special burdens, then we have caught plaintiffs in a lie. As an example of a special burden, I think the license for a Linux software DVD player would have to limit the kernel versions it can be used with because allowing people to change the kernel under a DVD player would allow them to do all sorts of things the DVD CCA/MPAA cartel wouldn't want. This is effectively a "no upgrade" clause that is not imposed on similar Windows players: a special burden. On the other hand, pulling together all the parts of the argument (the CSS license the Linux player makers are operating under, the CSS license that Windows player makers are operating under, the corresponding end user licenses and facts about how the operating systems are upgraded) would not be easy, so it may not be worth the bother, even if the argument is otherwise worth making. - Ravi Nanavati From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 1 11:49:47 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA26537 for dvd-discuss-outgoing; Tue, 1 Aug 2000 11:49:47 -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 LAA26534 for ; Tue, 1 Aug 2000 11:49:46 -0400 Message-ID: <20000801154853.22180.qmail@web511.mail.yahoo.com> Received: from [131.44.121.4] by web511.mail.yahoo.com; Tue, 01 Aug 2000 08:48:53 PDT Date: Tue, 1 Aug 2000 08:48:53 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] first amendment defense To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-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: > By that logic, shooting someone can't be deemed illegal because it > can be expressive. There has to be a middle ground. Not everything > with expressiveness is protected. This is where the different standards of judicial scruitiny enter. The first amendment usually enjoys the highest level of scrutiny: strict scrutiny. This means that a "compelling state interest" must be served by upholding the restraint on speech. This usually means that some Constitutional right or structure must be at odds with the speech in question. In your example, the life and health of the person being shot forms a compelling state interest whose protection requires disallowing the expression you describe. The shooter cannot claim the sanctity of rights while acting in this way. > I would submit to you, that a reasonable compromise would be that > source code is protected iff it cannot be compiled / interpreted / > whatever in its current state. Touretzky showed in his testimony that this would require that all source code be unprotected. Any sufficiently precise description of a method can have a compiler written for it. You cannot determine that a compiler has yet not been written (you cannot prove a negative), nor can you prevent one from being written. > As for the remaining source / object code, it should be treated as a > physical object. Like, say a book. > I feel like saying this is going to generate some ill feelings, so > disclaimer here: DMCA is bad law, but it has nothing to do with > free speech. Since Congress specifically said in 1201(c)(4) that their intent was not to restrict any first amendment rights, I think any attempt to use the DMCA for this purpose would be void. All the "balancing" was already done. __________________________________________________ Do You Yahoo!? Kick off your party with Yahoo! Invites. http://invites.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 1 12:11:31 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA26900 for dvd-discuss-outgoing; Tue, 1 Aug 2000 12:11:31 -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 MAA26897 for ; Tue, 1 Aug 2000 12:11:27 -0400 Message-ID: <20000801161032.26880.qmail@web511.mail.yahoo.com> Received: from [131.44.121.4] by web511.mail.yahoo.com; Tue, 01 Aug 2000 09:10:32 PDT Date: Tue, 1 Aug 2000 09:10:32 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] fair use again To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-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: > ummmmmmmmmmm I think theres a bit of a leap here. Just because there > is a right (natural or other) in the copyright act or the > constitution does not necessarily mean it cant be circumscribed, > eroded or re-defined. In an extreme case, even the constitution > can be ameneded (thats where all those numbers came from. It > is possible, albeit more difficult than changing an ordinary > run-o-the-mill statute). In this respect I think its necessary > to avoid imprecion in phrases like "but a natural right of fair use > implied by the copyright law under the Constitution. There is > no way that subsequent acts of Congress could take away that > right. ". US Congress can and has amended the copyright act a few > times, so its unfair to say that 'no way subsequent acts of Congress > could take away..". Same applies for the Constitution (IANAUSCL) but > I doubt its impossible to amend the US constitution either. Is an amendment an "act" of Congress? Usually when people say an "act of Congress" they are refering to passing a law as ordinary legislation. For example: fair use was only codified in the Copyright Act in 1976, though it has a long history as judge-made law. I also don't think an amendment to abolish or restrict fair use would even be proposed, let alone called for a vote. If anything extraordinary happens, it is much more likely that copyright will be abolished than fair use. Here's a couple articles supporting something akin to this: http://danny.oz.au/free-software/advocacy/against_IP.html "Against Intellectual Property," chapter of a book, "Information Liberation," by Brian Martin. Here's another article in the LA Times with a similar message: http://www.latimes.com/news/opinion/20000729/t000071270.html "Let's Give a Toast to Prohibition, Circa 2000" __________________________________________________ Do You Yahoo!? Kick off your party with Yahoo! Invites. http://invites.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 1 12:23:36 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA27630 for dvd-discuss-outgoing; Tue, 1 Aug 2000 12:23:36 -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 MAA27627 for ; Tue, 1 Aug 2000 12:23:34 -0400 Message-ID: <20000801162242.29485.qmail@web511.mail.yahoo.com> Received: from [131.44.121.4] by web511.mail.yahoo.com; Tue, 01 Aug 2000 09:22:42 PDT Date: Tue, 1 Aug 2000 09:22:42 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] first amendment defense To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-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: > 2.) I once took an algorithms class where all our assignments had to > be in pseudcode. That was about 30 people. It would have been > extremely difficult if not impossible to write a compiler > to interpret 30 unique styles of pseudocode. Nah, teach the class on compilers the same way, but require the first assignment to be done in C as well. __________________________________________________ Do You Yahoo!? Kick off your party with Yahoo! Invites. http://invites.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 1 12:26:12 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA27922 for dvd-discuss-outgoing; Tue, 1 Aug 2000 12:26:12 -0400 Received: from mail2.onetouch.com (mail2.onetouch.com [205.180.182.6]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id MAA27919 for ; Tue, 1 Aug 2000 12:26:11 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id ; Tue, 1 Aug 2000 09:26:11 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1D82@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] first amendment defense Date: Tue, 1 Aug 2000 09:26:08 -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: Bryan Taylor [mailto:bryan_w_taylor@yahoo.com] ... > > > As for the remaining source / object code, it should be > treated as a > > physical object. > Like, say a book. > I tend to think that -- in general -- programs should be classed more as "inventions" than as "literature". There -are- (of course) exceptions. There are also machines that should be classed as "art". However, in general programs are "devices" that "do work" with the proviso that they work & exist in a non-physical world (the term "cyberspace" has been waaay overused, but it could apply here in a limited sense as long as we try to keep the science fiction vision of it out of the discussion...). -- -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 Aug 1 12:30:03 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA28323 for dvd-discuss-outgoing; Tue, 1 Aug 2000 12:30:03 -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 MAA28320 for ; Tue, 1 Aug 2000 12:30:01 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id ; Tue, 1 Aug 2000 09:30:01 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1D83@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] Antitrust and IP: Kodak case Date: Tue, 1 Aug 2000 09:29:58 -0700 MIME-Version: 1.0 X-Mailer: Internet Mail Service (5.5.2650.21) Content-Type: text/plain; charset="iso-8859-1" Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > -----Original Message----- > From: Michael.A.Rolenz@aero.org [mailto:Michael.A.Rolenz@aero.org] > Sent: Thursday, July 27, 2000 1:44 PM > To: dvd-discuss@eon.law.harvard.edu > Subject: Re: [dvd-discuss] Antitrust and IP: Kodak case > > > > 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? > > The Plaintiffs maintain that the fact that the media is "digital" makes things different somehow. In truth, the media is irrelevant. It is the acts which must be judged legal or illegal. -- -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 Aug 1 12:33:49 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA28647 for dvd-discuss-outgoing; Tue, 1 Aug 2000 12:33:49 -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 MAA28638 for ; Tue, 1 Aug 2000 12:33:47 -0400 Received: from travel-net.com (trj58.travel-net.com [207.176.160.58]) by mail.travel-net.com (8.9.3/8.9.3) with ESMTP id LAA30686 for ; Tue, 1 Aug 2000 11:32:08 -0400 Message-ID: <3986FBCE.891443F1@travel-net.com> Date: Tue, 01 Aug 2000 12:33:18 -0400 From: Dan Steinberg Organization: Synthesis X-Mailer: Mozilla 4.74 [en] (Win98; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] fair use again References: <20000801161032.26880.qmail@web511.mail.yahoo.com> Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Bryan Taylor wrote: > > --- Dan Steinberg wrote: > > > ummmmmmmmmmm I think theres a bit of a leap here. Just because there > > is a right (natural or other) in the copyright act or the > > constitution does not necessarily mean it cant be circumscribed, > > eroded or re-defined. In an extreme case, even the constitution > > can be ameneded (thats where all those numbers came from. It > > is possible, albeit more difficult than changing an ordinary > > run-o-the-mill statute). In this respect I think its necessary > > to avoid imprecion in phrases like "but a natural right of fair use > > implied by the copyright law under the Constitution. There is > > no way that subsequent acts of Congress could take away that > > right. ". US Congress can and has amended the copyright act a few > > times, so its unfair to say that 'no way subsequent acts of Congress > > could take away..". Same applies for the Constitution (IANAUSCL) but > > I doubt its impossible to amend the US constitution either. > > Is an amendment an "act" of Congress? Usually when people say an "act > of Congress" they are refering to passing a law as ordinary > legislation. For example: fair use was only codified in the Copyright > Act in 1976, though it has a long history as judge-made law. well in must jurisdictions (your mileage may vary) the governing body (congres, council, parliament, etc) can act de novo (new legislation) or to amend existing legislation. AFAIK an act of congress can be either, or both or with some of the weird riders that are common horse-trading currency these days it would require tensor analysis to describe the situation... But for practical purposes it doesnt appear likely that US Congress would make such a move. I was just pointing out the need for precision. As the non-lawyers have probably realized by now from reading the court documents, how you make an argument is as important (if not more important) than making it in the first place. Saying something that can be attacked is just not a good idea, even if you think the attack might be irrelevant to the cause. > > I also don't think an amendment to abolish or restrict fair use would > even be proposed, let alone called for a vote. If anything > extraordinary happens, it is much more likely that copyright will be > abolished than fair use. > > Here's a couple articles supporting something akin to this: > > http://danny.oz.au/free-software/advocacy/against_IP.html > "Against Intellectual Property," chapter of a book, > "Information Liberation," by Brian Martin. > > Here's another article in the LA Times with a similar message: > http://www.latimes.com/news/opinion/20000729/t000071270.html > "Let's Give a Toast to Prohibition, Circa 2000" > > __________________________________________________ > Do You Yahoo!? > Kick off your party with Yahoo! Invites. > http://invites.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 Aug 1 12:38:22 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA28764 for dvd-discuss-outgoing; Tue, 1 Aug 2000 12:38:22 -0400 Received: from mail2.onetouch.com (mail2.onetouch.com [205.180.182.6]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id MAA28761 for ; Tue, 1 Aug 2000 12:38:21 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id ; Tue, 1 Aug 2000 09:38:21 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1D84@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: To whomever is editing the brief (was RE: [dvd-discuss] IP Misuse Article (Guess where it came from?)) Date: Tue, 1 Aug 2000 09:38:14 -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 Can we make sure a reference to this case gets in to the brief? -- -Richard M. Hartman hartman@onetouch.com 186,000 mi./sec ... not just a good idea, it's the LAW! > -----Original Message----- > From: Bryan Taylor [mailto:bryan_w_taylor@yahoo.com] > Sent: Thursday, July 27, 2000 9:27 PM > To: dvd-discuss@eon.law.harvard.edu > 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.ht ml 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 Tue Aug 1 12:49:33 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA28988 for dvd-discuss-outgoing; Tue, 1 Aug 2000 12:49:33 -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 MAA28985 for ; Tue, 1 Aug 2000 12:49:32 -0400 Received: from localhost (jerwin@localhost) by osf1.gmu.edu (8.8.8/8.8.8) with ESMTP id MAA10878 for ; Tue, 1 Aug 2000 12:49:14 -0400 (EDT) Date: Tue, 1 Aug 2000 12:49:14 -0400 (EDT) From: Jeremy A Erwin To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] fair use again In-Reply-To: <20000801161032.26880.qmail@web511.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, 1 Aug 2000, Bryan Taylor wrote: > --- Dan Steinberg wrote: There is > > no way that subsequent acts of Congress could take away that > > right. ". US Congress can and has amended the copyright act a few > > times, so its unfair to say that 'no way subsequent acts of Congress > > could take away..". Same applies for the Constitution (IANAUSCL) but > > I doubt its impossible to amend the US constitution either. > > Is an amendment an "act" of Congress? Usually when people say an "act > of Congress" they are refering to passing a law as ordinary > legislation. For example: fair use was only codified in the Copyright > Act in 1976, though it has a long history as judge-made law. For the benefit of those not from the USA: To amend a bill, or an act of congress only requires a majority in both houses of congress and the US president's consent; or in cases where this consent is not granted, a two thirds majority in both houses. As a practical matter, unless the bill is consented to by more than 60% of the Senate, it will not get passed, and courts can find the resulting law to be unconstitutional. To amend the constitution requires the consent of two thirds of both houses of congress, and the consent of three-fourths of the state legislatures. Conventions can substitute for either legislature, as in the case of the 19th amendment... The courts technically cannot overrule such constitutional amendments, though some might argue that the enforcemnet provisions of the 14th amendment were eviscerated in the 1890's, leading to excessive reliance on the "Commerce Clause." But I digress.. Jeremy Erwin From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 1 12:55:35 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA29214 for dvd-discuss-outgoing; Tue, 1 Aug 2000 12:55:35 -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 MAA29211 for ; Tue, 1 Aug 2000 12:55:29 -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 LAA18683 for ; Tue, 1 Aug 2000 11:54:48 -0500 Message-ID: <3986FFB7.F68CEC1F@mninter.net> Date: Tue, 01 Aug 2000 11:49:59 -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] fair use again References: <5A8391CA2D9ED311AFAA080009D982B10B1D7E@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: > Moreover, there is a clause in the DMCA itself that states > that it does not override fair use. Don't lean on that too heavily, because it says fair use is still a defense to copyright infringement... but not trafficking in a device that circumvents or circumventing a TPM, which isn't necessarily thus. -- moseng@mninter.net I use PGP 6.5.3 -- http://www.underwhelm.org/pgp From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 1 12:58:38 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA29268 for dvd-discuss-outgoing; Tue, 1 Aug 2000 12:58:38 -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 MAA29265 for ; Tue, 1 Aug 2000 12:58:25 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id NAA20141 for dvd-discuss@eon.law.harvard.edu; Tue, 1 Aug 2000 13:02:38 -0400 Date: Tue, 1 Aug 2000 13:02:33 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] fair use again Message-ID: <20000801130233.D19931@eldritchpress.org> References: <20000801083211.C19612@eldritchpress.org> <3986CC09.BA05E84@travel-net.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <3986CC09.BA05E84@travel-net.com>; from dstein@travel-net.com on Tue, Aug 01, 2000 at 09:09:29AM -0400 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, Aug 01, 2000 at 09:09:29AM -0400, Dan Steinberg wrote: > > > Eric Eldred wrote: > > > OK. I was able to follow up to here, but... > > > This is really the crux of the DMCA. MPAA was confronted with > > user rights in Sony v Universal Studios and Vault v Quaid that > > clearly stated the purchaser of digital content has the right > > to make a backup copy for archival or personal use. This right, > > importantly, was not a right delegated by the copyright holder, > > nor a right given by Congress, but a natural right of fair use > > implied by the copyright law under the Constitution. There is > > no way that subsequent acts of Congress could take away that > > right. And there is clear evidence from the legislative history > > of two important points: MPAA clearly intended DMCA to do this, > > and at the same time Congress put provisions in the law which > > are contradictory--stating that nothing in the law took away > > any fair use, but at the same time making illegal any technology > > used for that purpose. > > > ummmmmmmmmmm I think theres a bit of a leap here. Just because there > is a right (natural or other) in the copyright act or the constitution > does not necessarily mean it cant be circumscribed, eroded or > re-defined. In an extreme case, even the constitution can be ameneded > (thats where all those numbers came from. It is possible, albeit more > difficult than changing an ordinary run-o-the-mill statute). In this > respect I think its necessary to avoid imprecion in phrases like "but > a natural right of fair use > implied by the copyright law under the Constitution. There is > no way that subsequent acts of Congress could take away that > right. ". US Congress can and has amended the copyright act a few > times, so its unfair to say that 'no way subsequent acts of Congress > could take away..". Same applies for the Constitution (IANAUSCL) but I > doubt its impossible to amend the US constitution either. > > > no problem with the rest... Well, ask yourself where the right comes from. It doesn't come from license or contract, because Vault v Quaid specifically dealt with that. And it doesn't come from Congress, because there is no law that specifies exactly what fair use is--(true, the Librarian of Congress was supposed to clarify "fair use" under DMCA but that has not been finished yet). I think many scholars of copyright feel it is part and parcel of copyright itself (ask Yochai Benkler at NYU). But if it is part of the natural rights guaranteed by the Ninth Amendment then to overturn it would require another Constitutional amendment. Now, look at the legislative history. Ashcroft is very clear that he did not intend the DMCA to override fair use. The only reason it passed was that he was allowed to amend it to include his clause. And the only reason the MPAA allowed it to pass in that state was that they thought they could get away, anyway, with the contradiction, and control the technology through license. So if Judge Kaplan does not rule this way, there ought to be grounds for overturning the DMCA on appeal. From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 1 13:00:46 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA29319 for dvd-discuss-outgoing; Tue, 1 Aug 2000 13:00:46 -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 NAA29316 for ; Tue, 1 Aug 2000 13:00:43 -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 MAA19335 for ; Tue, 1 Aug 2000 12:00:03 -0500 Message-ID: <398700F2.38EA3C34@mninter.net> Date: Tue, 01 Aug 2000 11:55:14 -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] emphasis on the "real" crime References: <200008010726.e717QDP06348@outgoing.themail.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 mw@themail.com wrote: > I am aware the DMCA attemps to restrict the circumventing of > encryption/device. I think we all know the 1st amendment by > now(congress shall enact no law that restricts speech)... > But maybe it will help if we put a little emphasis on what the courts > and the MPAA MUST AGREE as the "true culprit". > The person(s) who leaked the CSS code should be blamed. A few problems. The MPAA has no legal recourse against the company (Xing) that made the reverse engineering possible (read: easy). The DVDCCA could sue them for breach of contract somehow, but it's not necessary if the MPAA can win this case. The MPAA has no direct legal interest in CSS because they set up this dummy corporation specifically for this purpose. This is why the DVDCCA is using their only legal leg, misappropriation of trade secrets, in their case in California. > How can the courts and MPAA argue this one. It was, after all, the > responsibility of MPAA to keep CSS secret, right. So, don't confuse the rights and responsibilities of the MPAA and the DVDCCA (I know how easy it is to do). As I have been arguing, though, this case is not one that 1201 should "protct" copyright holders from, and the MPAA should not be the party litigating it. This is an issue of an unsatisfactory implementation of CSS because it does not follow the license restrictions of the DVDCCA. The MPAA should not be allowed to bring legitimate implementations under 1201 "circumvention device" charges, because they then could control the player market entirely by suing the manufacturers that offered legitimate license-free players, which would be out of the DVDCCA's reach legally, or by suing manufacturers of devices which implement CSS that rubbed them the wrong way. These manufacturers are not providing devices that circumvent authority, they circumvent market controlling licenses that are drawn up by the DVDCCA (but not by the copyright holders, because that would be copyright misuse); licenses that are not relevant because compliant implementations can be legitimately created through reverse engineering. CSS is the TPM. CSS determines authorization at playtime by reading the keys off the disk. DeCSS does it in the same way, so it is compliant. Compliant implementations never circumvent. What hapens to the data after access is authorized is not within the copyright holder's rights to control. The technological limitations imposed by DVDCCA licenses are not a part of the authorization performed by CSS, they are license restrictions, and can be avioded legitimately through reverse engineering and implementing CSS in a non license-restricted device. The same authorization tests are performed by licensed and non-licensed compliant implementations and they achieve identical results. Authorized players, authorized viewing devices and authorized hair color must never, and do never, enter into it. Kaplan ruling that this device violates 1201 codifies the DVDCCA post-authorization license restrictions as parts of the TPM, perpertually restricting the post-authorization abilities of DVD players at the behest of the copyright holders, AND writes the plaintiffs a legal blank check under 1201 to pursue any CSS implementation as trafficking. DeCSS is not a black box that tricks CSS into giving you access more often than you are authorized. This is not stealing cable or PPV satellite transmissions. You are authorized exactly as often. DeCSS is a legitimate cable converter, provided so you do not have to rent one from your local cable monopoly, and it provides identical access. The plaintiffs did not disprove this in trial. I would like to see an argument of this sort in the authority paper, or if it doesn't fit, I hope that the defense considers its merits. I think it should be among the legal arguments submitted to Kaplan. I haven't seen any arguments to that contradict it, but please chime in if you think I'm making it too easy. If Mr. Thau thinks this could fit into the paper somewhere, I'd be happy to write it. - -- 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/AwUBOYcA7zik9YADgV7kEQKCVwCgj6C1hNn4qxG4193m2D2J7iCcMxMAoOJ1 3LUmA9xrFwfngt23Mzlq3gGV =TO1I -----END PGP SIGNATURE----- From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 1 13:04:49 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA29624 for dvd-discuss-outgoing; Tue, 1 Aug 2000 13:04:49 -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 NAA29619 for ; Tue, 1 Aug 2000 13:04:42 -0400 Received: from localhost (localhost [[UNIX: localhost]]) by rjmconsulting.com (8.9.3/8.9.3) id KAA14526 for dvd-discuss@eon.law.harvard.edu; Tue, 1 Aug 2000 10:15:50 -0700 From: Russell (James) Miller To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] copyleft subpoenad Date: Tue, 1 Aug 2000 10:14:42 -0700 X-Mailer: KMail [version 1.0.29.2] Content-Type: text/plain MIME-Version: 1.0 Message-Id: <00080110154902.28633@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 It looks like copyleft has been subpoenad in the DeCSS case for producing the shirts (of which I own one) with the css_descramble source on it. Check out slashdot for details. I think I'm going to buy another one... --james (Russell) -- Russell (James) 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 Aug 1 13:05:04 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA29632 for dvd-discuss-outgoing; Tue, 1 Aug 2000 13:05:04 -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 NAA29629 for ; Tue, 1 Aug 2000 13:04:58 -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 MAA19965 for ; Tue, 1 Aug 2000 12:04:17 -0500 Message-ID: <398701EE.D48DBBA6@mninter.net> Date: Tue, 01 Aug 2000 11:59:26 -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: [dvd-discuss] Speech? Content-Type: text/plain; charset=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://slashdot.org/article.pl?sid=00/08/01/129205&mode=thread According to slashdot, bastion of accurate and well-researched resporting, Copyleft has been subpoenaed and named as a defendant in the suit against Corley/2600. Take it for what it's worth. -- moseng@mninter.net I use PGP 6.5.3 -- http://www.underwhelm.org/pgp From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 1 13:16:24 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA30064 for dvd-discuss-outgoing; Tue, 1 Aug 2000 13:16:24 -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 NAA30061 for ; Tue, 1 Aug 2000 13:16:22 -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 MAA25354 for ; Tue, 1 Aug 2000 12:16:04 -0500 (CDT) Message-ID: <39870598.CAFA707@uic.edu> Date: Tue, 01 Aug 2000 12:15:04 -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] Does DeCSS circumvent? Content-Type: text/plain; charset=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, because so many others are using > "circumvent" as a synonym for "violate 1201(a)," > I think we'd do best to avoid saying DeCSS > circumvents. I like "bypasses." (And I still like > the analysis that enabling fair use precludes > a finding of legally-actionable-circumvention.) What's wrong with saying that DeCSS "implements" CSS instead of "circumvents" or "bypasses" it? From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 1 13:23:59 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA30202 for dvd-discuss-outgoing; Tue, 1 Aug 2000 13:23:59 -0400 Received: from tbird.iworld.com ([63.236.72.237]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id NAA30199 for ; Tue, 1 Aug 2000 13:23:58 -0400 Received: (from nobody@localhost) by tbird.iworld.com (8.10.2/8.10.2) id e71HNj217945; Tue, 1 Aug 2000 13:23:45 -0400 Date: Tue, 1 Aug 2000 13:23:45 -0400 Message-Id: <200008011723.e71HNj217945@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] first amendment defense Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Consilgere@cs.com wrote: >3.) I'll tell you why Doe 1's legal status should change. If I gave you a >do-it-yourself nuclear weapon kit, it would be illegal. If I gave you a >blueprint of a nuclear weapon, it would be protected. Why? Because you >can't make a nuclear weapon out of just blueprints. You need the raw >materials. >Source code IS the raw material for a program. No. >The government can regulate things, even speech, when there is a >compelling government interest. Hint hint. >And seeing it looks like computers are here to stay, regulating >the Internet within the U.S. is a compelling interest. No. It isn't. Stop foaming at the mouth and maybe I'll respond with more than yes or no. >The reason they haven't is because no-one in Washington with any >power knows how it works. Where the fuck have you been? Of course they have. They tried to pin responsibility on ISPs. They tried to secretly set up taps. They tried to silence any discussion of controlled substances. Get a grip. >I get the feeling the Engineering community simply doesn't care about law >enforcement on the Internet. Let's not be vicious. >All I seem to see about in these issues is civil liberties, civil >liberties, civil liberties. I never hear anything that actually gives a >helping hand to any sort of law enforcement That's because they already have a LOT of HELP. What makes law enforcement special over any other group? And when the hell does the trading of rights stop. It's like a god damn drug to some people. They love to state the argument because it makes them feel responsible about serious things. I'm sorry but I could say the same of your position. When are you going to take into account what happens when laws are abused like the way cops can ask to see your spare tire as a way to bypass the need of a warrant? >organization. When will we realize that its no longer just a toy for us to >share scientific data? If we have to share it with people who will abuse it, >we need a way to enforce laws against abusing it. So you think abusers weren't around in the early days? C'mon get in touch with the real world. SECOND, enforce laws after the crime is committed. Please stop and think. Not every crime is equivalent to murder. Especially in a virtual space where murder doesn't exist. People seem to hate the net more than they hate crime in their own neighbor hoods. 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 Tue Aug 1 13:31:45 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA30383 for dvd-discuss-outgoing; Tue, 1 Aug 2000 13:31:45 -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 NAA30380 for ; Tue, 1 Aug 2000 13:31:44 -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 MAA27503 for ; Tue, 1 Aug 2000 12:31:25 -0500 (CDT) Message-ID: <39870932.1F4B26F4@uic.edu> Date: Tue, 01 Aug 2000 12:30:26 -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] fair use again Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > Suppose Queen loses his case, based on the idea that the strict > clause in 1201 overrides the weaker exceptions. Then assume that > in 100 years the movie enjoys a surprising renewal of interest. > The Library of Congress wishes to reissue the movie on DVD, but > without encryption. Suppose by that time the studio has gone out > of business and the film is an orphan film. No means of > decrypytion can be located and it is still illegal to develop or > distribute any means to do so--the programmers who could do so > have all been burned at the stake. The public owns the movie, but > cannot enjoy any use even though it cannot be otherwise than > fair. Plaintiffs have won a perpetual copyright contrary to the > Constitution. First off, in 100 years, the term of copyright will be 195 years, so this won't be an issue. The devil's advocate would reply that the Library of Congress could reproduce and distribute the movie in its CSS encrypted form, i.e. using the "Chinese Bootleg" method. Did anyone ever get the point into the public record that CSS encrypts not only copyrighted works, but also public domain works that are not subject to 1201 protection? There's no need to wait 100 years to make this point. - John From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 1 13:32:57 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA30416 for dvd-discuss-outgoing; Tue, 1 Aug 2000 13:32:57 -0400 Received: from hotmail.com (f189.law9.hotmail.com [64.4.9.189]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id NAA30413 for ; Tue, 1 Aug 2000 13:32:54 -0400 Received: (qmail 59813 invoked by uid 0); 1 Aug 2000 17:32:05 -0000 Message-ID: <20000801173205.59812.qmail@hotmail.com> Received: from 128.244.34.133 by www.hotmail.com with HTTP; Tue, 01 Aug 2000 10:32:05 PDT X-Originating-IP: [128.244.34.133] From: "Harold Eaton" To: dvd-discuss@eon.law.harvard.edu Subject: RE: [dvd-discuss] Antitrust and IP: Kodak case Date: Tue, 01 Aug 2000 13:32:05 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 Richard Hartman wrote: >The Plaintiffs maintain that the fact that the media is >"digital" makes things different somehow. > >In truth, the media is irrelevant. It is the acts which >must be judged legal or illegal. > The Court has written (multiple times I believe): "DVDs contain motion pictures in digital form, which presents an enhanced risk of unathorized reproduction and distribution because digital copies made from DVDs do not degrade from generation to generation." Which suggests that the court believes that DVDs, being digital, entail special risks. He might conclude that they need special protections as a result. What is really bothersome here is that digitial copies made FROM ANY SOURCE WHETHER DIGITAL OR NOT do not degrade from generation to generation. The form of the source imposes no special risk to copying and distribution in this regard. I can digitize a video tape, or a movie projected onto a theater screen etc. The various media industries have always beleived that the better quality of available material, the more likely it is to be pirated. That's probably true. It also means it's more likely to sell! Strangely they have historically opted for the low profit strategy of piracy and sales by making lower quality products available. This is even true of DVDs - they restrict the quality of the output signal (DVD player manufacturers are not permitted to provide various truly high quality outputs by the terms of the DVD-CCA licensing, or so it has been reported). The MPAA can be amazingly dense! ________________________________________________________________________ Get Your Private, Free E-mail from MSN Hotmail at http://www.hotmail.com From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 1 13:39:04 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA30506 for dvd-discuss-outgoing; Tue, 1 Aug 2000 13:39:04 -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 NAA30503 for ; Tue, 1 Aug 2000 13:39:03 -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 NAA25529 for ; Tue, 1 Aug 2000 13:38:45 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id NAA13910; Tue, 1 Aug 2000 13:38:44 -0400 (EDT) Date: Tue, 1 Aug 2000 13:38:44 -0400 (EDT) Message-Id: <200008011738.NAA13910@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: RE: [dvd-discuss] fair use again In-Reply-To: <5A8391CA2D9ED311AFAA080009D982B10B1D7E@mail2.onetouch.com> References: <5A8391CA2D9ED311AFAA080009D982B10B1D7E@mail2.onetouch.com> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Richard Hartman writes: > Moreover, there is a clause in the DMCA itself that states > that it does not override fair use. Yes; they were certainly aware of the need to preserve fair use. It's a different question whether they actually did. 1201(a) preserves fair use rights, but it also bans trafficing in technical materials which are effectively required to exercise those rights. They didn't make fair use illegal; they just made it impossible to exercise fair use rights without breaking the law. Neat, huh? Unfortunately, trying to argue that for DVDs necessarily involves a hypothetical case in which circumvention of CSS is required to achieve fair use, and you can look at the LOC transcript to see what that looks like. Robin Gross of the EFF started arguing this point, only to be confronted with the argument that in her *particular* case, whatever fair use was needed could have been achieved by getting the same movie on VHS. To make the point clear, you have to come up with a complete hypothetical case which leaves the plaintiffs no wriggle room; there are some judges who might sit still for long enough to let you do that, but Kaplan doesn't strike me as one of them. rst From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 1 13:46:30 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA30957 for dvd-discuss-outgoing; Tue, 1 Aug 2000 13:46:30 -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 NAA30952 for ; Tue, 1 Aug 2000 13:46:17 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id NAA20217 for dvd-discuss@eon.law.harvard.edu; Tue, 1 Aug 2000 13:50:26 -0400 Date: Tue, 1 Aug 2000 13:50:21 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] fair use again Message-ID: <20000801135021.E19931@eldritchpress.org> References: <20000801083211.C19612@eldritchpress.org> <200008011538.LAA13427@soggy-fibers.ai.mit.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <200008011538.LAA13427@soggy-fibers.ai.mit.edu>; from rst@ai.mit.edu on Tue, Aug 01, 2000 at 11:38:31AM -0400 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, Aug 01, 2000 at 11:38:31AM -0400, Robert S. Thau wrote: > Eric Eldred writes: > > I've been thinking more about Robert and Bryan's paper > > and have to question why Fair Use is not emphasized more. > > Maybe we have been entranced by the plaintiffs' obfuscation. > > Fair use isn't emphasized, or even discussed, because that's not the > topic --- the thing is intended, at least by me, as an in-depth > discussion of authorization, not an overview of problems with the law > as a whole. > > (I've been nervous about fair-use arguments generally because it's > hard to argue on the basis of the facts of the case --- there is no > fair use of CSS-protected content in evidence, so if we're raising the > point it looks like we're making things up and blowing smoke. But in > the authority paper, it's just off topic). Well, the authority paper does include some misleading statements about licensing being allowed to override fair use. But even if it is not appropriate for the authority document I strongly believe defense needs to raise this very issue. The reason there is no evidence is that Kaplan improperly excluded it. And you don't have to have facts, only a reasonable interpretation of the statute, with the legislative history and some knowledge of previous copyright law. > > > 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. > > 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. > > > > Curious language. Why doesn't the viewer of a VHS cassette > > have the right to view it with a scanning electron microscope > > or on a PAL player? Not because of a license--and also not > > because the copyright holder has the right to refuse them that > > right--but because it is technically difficult or impossible. > > It isn't technically difficult at all to put a DVD on an SEM if you > happen to have one, and be skilled in its use. This is actually a > pretty good point, which I might want to toss in to my own discussion > of that quote; it makes the sweeping nature of the control claimed by > the MPAA much clearer. Well, what I meant was what Jack Valenti deposed and I believe either Schumann or Reider, that making even a backup copy of a purchased DVD would be violating DMCA because it involves encryption. And licensing or other restrictions cannot affect this right. > > Here we almost recommend that plaintiffs use a license to prevent > > fair use. But this would not be allowed by the Constitution, as > > recognized by Sony v Universal Studios and Vault v Quaid. I > > propose we take out the last paragraph and rewrite it. > > FWIW, the license agreements on DVDs which I recommend are exactly > parallel to software license agreements, which in some cases do > restrain speech. (You may not have been around when I raised the > issue of the Oracle license agreements, which bans speech by > forbidding the licensee from disclosing the results of any performance > tests which they perform on the software). Yes, but there is a question of how enforceable such licenses really are. This is why DMCA and UCITA. To argue that licenses allow this is therefore circular. Anyway, we have just seen that licenses in fact are not used in this case. So to suggest to plaintiffs that they might legally use licenses is rather going too far I believe. > If you want to argue that those licensing regimes are > unconstitutional, please, be my guest. They do govern distribution of > copyrighted content. No, it is just that in Vault v Quaid this very issue came up, that the license could never prevent fair use in making one archival, backup copy of the software. To claim that Congress intended or could have intended to override Vault v Quaid with DMCA is losing one of our best weapons. The legislative history presented is quite clear and should be exploited. It is not a question of challenging the Constitutionality as in figuring out the correct interpretation of 1201, which you are trying to do in this text. > But take them head-on, because any court which ruled against the DMCA > on those grounds would be invalidating just about every commercial > software license agreement in existence, and would know it. No, it could be limited exactly to what Vault v Quaid decided: a vendor can legally sell software for the stated purpose of decrypting a legally purchased software package, no matter what the license says, because copyright is governed by fair use and fair use allows the consumer to make an archival copy, and if the only practical way to do this is to crack, then crack. I don't see how this is not directly applicable to this copyright case (this is not a licensing case). The law must imply this because it goes on to prohibit the very transactions such as "marketing" or "trafficking" or "commercial or personal financial gain" that Vault v Quaid does not cover--it is intended just as Sony v Universal for personal use, not to be sold as a black box to allow copies to be exchanged on the Internet. Thus the trading of decrypted or encrypted DVDs over the Internet would still be illegal. However, DeCSS or LiViD would not be illegal; a person using them could infringe on copyright, but not by exercising fair use rights to make one backup copy, or by distributing the necessary software to do so. >They > won't do this casually. As with the "restraint of trade because > prevents open-source competition" argument, this is stretch argument > not so much because of the immediate facts of this case, as because a > ruling on this basis would overturn so much *other* settled law. No, many other aspects of licensing could remain. For example, a consumer might not have a license to copy a rented VHS tape, because she does not purchase it and fair use does not require that she be able to back it up if she doesn't own it. And so on. I'm not claiming that an Oracle license could not prevent benchmarking. Vault v Quaid does not cover fair use in such a case. > Besides, if they want to slap such a license on DVDs, that will have > two effects. First, it would expose a tying arrangement which is > clearly abusive, by the Morton Salt standard. Second, it would allow > every consumer to read the restrictions, and they would gag on it. Well, my point is that the license could not be enforced anyway, per Vault v Quaid, unless this was specifically overridden, and the legislative history shows otherwise. So I do think it would be better to eliminate references to licensing being okay. > > Look at this thought experiment. Instead of the "user," or > > "legitimate purchaser of a valid DVD," think of a copyright > > holder. Let's assume famous mystery writer Stephen Queen writes > > a book which is made into a movie. Let's assume he is > > economically powerful enough to get the movie studio to agree to > > a contract that states he will acquire the full rights to the > > movie after 10 years. So the studio puts the movie on a DVD > > under CSS. After 10 years Queen gets the movie back and wants to > > release it without CSS. Studios refuse to allow him a license > > from DVD-CCA to do this--maybe on the grounds that doing so would > > harm sales of the encrypted version. So Queen attempts to buy > > some software, let's say DeCSS, so he can resume full rights to > > his own property, that he owns the copyright for. According to > > plaintiffs' interpretation of 1201, he could not do this. Even > > though DeCSS might have an important legitimate use under 1201 > > that has nothing to do with infringing copyright, he still cannot > > buy DeCSS because it is illegal. > > He can put it on unencrypted DVDs regardless. And they do claim to > issue licenses to all comers. No, there was testimony that the copyright holder has a license and contract with DVD-CCA that he could not. Now, the clause 1201(b) is pretty clear that the copyright holder is the one who can authorize. What I am saying is that in this case the copyright holder might have only an encrypted disc to work with. Vault v Quaid is clear that the owner of the disc has the right to decrypt it; my point is that DMCA states exactly that the copyright holder has authority to decrypt it (or encrypt it). But if DVD-CCA does not allow him to buy or otherwise obtain a program such as DeCSS (and for some reason the encrypted disc is the only way the rights transfer is obtained) then he cannot exercise his rights. Here is definitely a situation where DeCSS has a use, and where the DVD-CCA would or legally could prevent it. It is something like this: we have shown there is at least ONE legal use of DeCSS. But the law says, no matter, there has to be preponderant evidence that this is the only significant use. So ANY use of DeCSS has to be illegal, even if it takes away without compensation the copyright holder's right to his own property. This is obviously contradictory and has no relation to protecting the copyright holder's rights, only the DVD-CCA's. > > Suppose Queen loses his case, based on the idea that the strict > > clause in 1201 overrides the weaker exceptions. Then assume that > > in 100 years the movie enjoys a surprising renewal of interest. > > The Library of Congress wishes to reissue the movie on DVD, but > > without encryption. Suppose by that time the studio has gone out > > of business and the film is an orphan film. No means of > > decrypytion can be located and it is still illegal to develop or > > distribute any means to do so--the programmers who could do so > > have all been burned at the stake. The public owns the movie, but > > cannot enjoy any use even though it cannot be otherwise than > > fair. Plaintiffs have won a perpetual copyright contrary to the > > Constitution. > > An argument which does not require fair use --- I do cover perpetual > rights. Patents not copyright. True, plaintiffs confuse them, but even so. I do believe it does involve fair use because it is not reasonable to expect that at the end of 100 years a process be suddenly invented that could only decrypt this particular movie on DVD, and not other discs employing the same process. > > Or suppose (and this is real) that a publisher of print books > > issues a novel by Stephen Queen on DVD with CSS. A blind reader > > of the novel cannot print out the novel because CSS prevents > > that. If there were some technical way to bypass the encryption > > and print it to a Braille printer or speech synthesis hardware, > > then blind user could read the book. But in preventing any > > copies from being made, publisher also prevents a wide range of > > fair use--use which is demonstrably fair, and which shows a wide > > range of exceptions that need to be applied to the law instead of > > the strict construction of plaintiffs. > > Not quite; the protection system on the Steven King ebook wasn't CSS. It matters little. As Gold says, it's encryption, it is covered by DMCA. > > I have to assume there is some sort of judicial rule that states > > a federal judge cannot pick and choose which separate parts of a > > law to enforce, but must take it as a whole. Congress > > definitely intended the fair use and other exceptions to apply. > > So the judge has a choice: either interpret fair use liberally, > > which makes nonsense of the anti-circumvention technology clause, > > or decide to throw out the entire law for inconsistency. I think > > this is what Samuelson was trying to get at. She says either a > > judge or Congress needs to rewrite the law. But Judge Kaplan, I > > feel, should not do so, but instead return it to Congress as > > contradictory and unenforceable. > > > > How does this sound? > > Like an argument that we might want to revisit at higher stages of > appeal, with a more sympathetic judge; I think Kaplan won't bite. > > Fair use is, I acknowledge, a real problem with the law. But, once > again, there's no fair use in evidence, and a lot of judges won't be > patient with hypothetical situations. > > rst Well, I think we have to get this in the brief. It's not a matter of evidence--that was excluded. It's a matter of law, such as the legislative history and previous interpretations of copyright law such as Vault v Quaid. Fair use is not a matter of degree or fact, it is something implied by the very nature of copyright. You don't have to be hypothetical at all, you just have to try to interpret the law as a reasonable person would do, just as the "authority" paper does. But if you don't want to include it, then I hope the defense does consider making references to the fair use argument. It is, in my opinion, central to this whole issue and to ignore it would be stupid and simply bowing to the obfuscation of plaintiffs. Robert, you have written an excellent paper and I don't want to take anything away from your achievement. Please forgive me if my ramblings have been inappropriate. -- "Eric" Eric Eldred Eldritch Press mailto:Eldred@EldritchPress.org http://www.eldritchpress.org/EricEldred.vcf From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 1 13:48:05 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA31031 for dvd-discuss-outgoing; Tue, 1 Aug 2000 13:48:05 -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 NAA31028 for ; Tue, 1 Aug 2000 13:48:05 -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 NAA26519 for ; Tue, 1 Aug 2000 13:47:47 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id NAA13973; Tue, 1 Aug 2000 13:47:45 -0400 (EDT) Date: Tue, 1 Aug 2000 13:47:45 -0400 (EDT) Message-Id: <200008011747.NAA13973@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: To whomever is editing the brief (was RE: [dvd-discuss] IP Misuse Article (Guess where it came from?)) In-Reply-To: <5A8391CA2D9ED311AFAA080009D982B10B1D84@mail2.onetouch.com> References: <5A8391CA2D9ED311AFAA080009D982B10B1D84@mail2.onetouch.com> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Richard Hartman writes: > Can we make sure a reference to this case gets in to the brief? > I'm not sure what brief you're referring to (if we've actually decided to submit the authority paper as an amicus brief, it's news to me). But the paper already does contain that exact excerpt from the Berkeley law journal article, in the "abuse of paracopyright" section which was basically written by Bryan. rst From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 1 13:54:13 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA31444 for dvd-discuss-outgoing; Tue, 1 Aug 2000 13:54:13 -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 NAA31441 for ; Tue, 1 Aug 2000 13:54:00 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id NAA20228 for dvd-discuss@eon.law.harvard.edu; Tue, 1 Aug 2000 13:58:11 -0400 Date: Tue, 1 Aug 2000 13:58:06 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] fair use again Message-ID: <20000801135806.F19931@eldritchpress.org> References: <5A8391CA2D9ED311AFAA080009D982B10B1D7E@mail2.onetouch.com> <3986FFB7.F68CEC1F@mninter.net> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <3986FFB7.F68CEC1F@mninter.net>; from moseng@mninter.net on Tue, Aug 01, 2000 at 11:49:59AM -0500 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, Aug 01, 2000 at 11:49:59AM -0500, Chris Moseng wrote: > Richard Hartman wrote: > > > Moreover, there is a clause in the DMCA itself that states > > that it does not override fair use. > > Don't lean on that too heavily, because it says fair use is still a > defense to copyright infringement... but not trafficking in a device > that circumvents or circumventing a TPM, which isn't necessarily thus. Again I point to Vault v Quaid, where this situation specifically came up. If the user has fair use rights to make one backup copy, then the user has a right to buy software that allows him to make the copy, and a vendor has the right to sell software to allow the user to make the copy. What you are suggesting that DMCA says here is quite obviously self-contradictory, that the user has a right to this fair use, but no legal way to exercise it by buying some software to accomplish the fair use, but must instead do all the reverse engineering and software development herself. This cannot be what Congress intended by this clause. Instead, I propose that what Ashcroft meant by insisting on this very clause, was that DMCA did NOT override Vault v Quaid nor Sony v Universal Studios. The careful qualifications are meant to prevent only such obvious infringements such as using a black box to avoid having to pay for video streamed over the Internet. Not for such obvious fair use as making a backup copy. The fact that Judge Kaplan excluded defense testimony concerning fair use means that he is taking only part of DMCA as the law, and that is improper--he must treat the act as a unit and consequently cannot exclude considering fair use and the exceptions. If he does not consider the legal arguments about fair use germane, then it will be a matter for appeal. From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 1 13:58:07 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA32006 for dvd-discuss-outgoing; Tue, 1 Aug 2000 13:58:07 -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 NAA32003 for ; Tue, 1 Aug 2000 13:58:06 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id ; Tue, 1 Aug 2000 10:58:03 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1D86@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] first amendment defense Date: Tue, 1 Aug 2000 10:57:54 -0700 MIME-Version: 1.0 X-Mailer: Internet Mail Service (5.5.2650.21) Content-Type: text/plain; charset="iso-8859-1" Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > -----Original Message----- > From: Rares Marian [mailto:rmarian@linuxstart.com] ... > > Consilgere@cs.com wrote: > ... > >And seeing it looks like computers are here to stay, regulating > >the Internet within the U.S. is a compelling interest. > > No. It isn't. It is from the power-brokering sense, but not from the constitutional sesne... > > Stop foaming at the mouth and maybe I'll respond with more > than yes or no. > > >The reason they haven't is because no-one in Washington with > any >power knows how it works. > > Where the fuck have you been? Of course they have. They > tried to pin responsibility on ISPs. They tried to secretly > set up taps. They tried to silence any discussion of > controlled substances. Get a grip. Consilgere is correct in that they don't know how it works. That is -why- they've tried all the things that Rares mentions, because they don't believe that there is something in this world that can not be regulated. The Internet was -designed- to be decentralized. It was designed originally to ensure that our military and government communications could not be wiped out by destroying a single installation. It was designed well -- therefore by the same logic it can not be -regulated- from a single point. Now over the course of the evolution of the Internet, since it "went public", a "backbone" has developed. Much, but not all, of the communications over the internet travels through this backbone. The key phrase here is "but not all". > >I get the feeling the Engineering community simply doesn't > care about law > >enforcement on the Internet. > > Let's not be vicious. I thought Consiglere meant "laywer", not "troll" ... > >All I seem to see about in these issues is civil liberties, civil > >liberties, civil liberties. Those -are- important. >I never hear anything that > actually gives a > >helping hand to any sort of law enforcement Usually because they are trying to overreach. > >organization. When will we realize that its no longer just > a toy for us to > >share scientific data? If we have to share it with people > who will abuse it, > >we need a way to enforce laws against abusing it. Enforcement is still a legal matter, not a technical one. Three objections to a technical approach: 1) hackers will still bypass these technical restrictions 2) government will abuse these capabilities 3) it gives a false sense of security (see 1) If I sell 1000 copies of your movie, there are remedies already in place in the courts. The addition of a new medium in which the sale can take place does not change the core infringement involved in the act. > SECOND, enforce laws after the crime is committed. VERY important point. A "prevention" approach tends to stop things other than crimes. And there will still be people that can bypass the prevention mechanisms. -- -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 Aug 1 13:59:11 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA32139 for dvd-discuss-outgoing; Tue, 1 Aug 2000 13:59:11 -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 NAA32076 for ; Tue, 1 Aug 2000 13:58:56 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id OAA20268 for dvd-discuss@eon.law.harvard.edu; Tue, 1 Aug 2000 14:03:07 -0400 Date: Tue, 1 Aug 2000 14:03:02 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] fair use again Message-ID: <20000801140301.G19931@eldritchpress.org> References: <5A8391CA2D9ED311AFAA080009D982B10B1D7E@mail2.onetouch.com> <200008011738.NAA13910@soggy-fibers.ai.mit.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <200008011738.NAA13910@soggy-fibers.ai.mit.edu>; from rst@ai.mit.edu on Tue, Aug 01, 2000 at 01:38:44PM -0400 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, Aug 01, 2000 at 01:38:44PM -0400, Robert S. Thau wrote: > Richard Hartman writes: > > Moreover, there is a clause in the DMCA itself that states > > that it does not override fair use. > > Yes; they were certainly aware of the need to preserve fair use. It's > a different question whether they actually did. 1201(a) preserves > fair use rights, but it also bans trafficing in technical materials > which are effectively required to exercise those rights. They didn't > make fair use illegal; they just made it impossible to exercise fair > use rights without breaking the law. Neat, huh? > > Unfortunately, trying to argue that for DVDs necessarily involves > a hypothetical case in which circumvention of CSS is required to > achieve fair use, and you can look at the LOC transcript to see what > that looks like. Robin Gross of the EFF started arguing this point, > only to be confronted with the argument that in her *particular* case, > whatever fair use was needed could have been achieved by getting the > same movie on VHS. To make the point clear, you have to come up with > a complete hypothetical case which leaves the plaintiffs no wriggle > room; there are some judges who might sit still for long enough to > let you do that, but Kaplan doesn't strike me as one of them. Well, Nesson and Touretzky have already briefed or testified, so there is some evidence of video being used in distance education and the need for fair use to cover DVD content. It is not true there is NO evidence submitted. But defense counsel would be wise to keep trying to submit more, since this may be grounds for appeal. From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 1 14:00:34 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA32547 for dvd-discuss-outgoing; Tue, 1 Aug 2000 14:00:34 -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 OAA32544 for ; Tue, 1 Aug 2000 14:00:33 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id ; Tue, 1 Aug 2000 11:00:33 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1D87@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] fair use again Date: Tue, 1 Aug 2000 11:00:25 -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: Chris Moseng [mailto:moseng@mninter.net] > Sent: Tuesday, August 01, 2000 9:50 AM > To: dvd-discuss@eon.law.harvard.edu > Subject: Re: [dvd-discuss] fair use again > > > Richard Hartman wrote: > > > Moreover, there is a clause in the DMCA itself that states > > that it does not override fair use. > > Don't lean on that too heavily, because it says fair use is still a > defense to copyright infringement... but not trafficking in a device > that circumvents or circumventing a TPM, which isn't necessarily thus. > In order to determine that circumvention has occured, an infringement must occur. Otherwise the decryption was legimitate (i.e. authorized -- perhaps by fair use) access and not circumvention. -- -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 Aug 1 14:04:35 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA01402 for dvd-discuss-outgoing; Tue, 1 Aug 2000 14:04:35 -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 OAA01399 for ; Tue, 1 Aug 2000 14:04:32 -0400 Received: (from uucp@localhost) by natsemi-bh.nsc.com (8.8.8/8.6.11) id LAA21878 for ; Tue, 1 Aug 2000 11:04:08 -0700 (PDT) Received: from mailhost1.ia.nsc.com(147.5.200.40) by natsemi-bh.nsc.com via smap (4.1) id xma021475; Tue, 1 Aug 00 11:02:58 -0700 Received: from ball by ia.nsc.com (SMI-8.6/SMI-SVR4) id MAA25064; Tue, 1 Aug 2000 12:02:57 -0600 From: "John Zulauf" To: Subject: [dvd-discuss] What are our next steps (post MPAA v. 2600) Date: Tue, 1 Aug 2000 12:06:39 -0600 Message-ID: <000601bffbe3$3d9e5d80$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 While there is still some details to be discussed regarding the amicus, I am curious about step should next be taken to address the many important issues raised in this forum. Among these issues are: * The anti-trust behavior of the media-cartel * DVD-CAA leverage et. al. * inter-region restraint of trade * non-privity contractual restraint of end user * The increasing trend to copy-protect published media * the new HW region-coded DVD drives * new encrypted audio content "standards" * The copyright abuse implied in the above Unlike some bumper stickers I don't think we can "stop the MPAA." The media companies have legitimate interests in preventing commericial piracy and content self-rating (to avoid the threat of gov't regulation). They will naturally form consortia to address these issues. What I think we need to address is the abuses of these consortia in some lasting prophylactic way. My short list of ideas include: * Legal actions * Class action suit re: restraint vs. import DVD's differential pricing (in WTO trade court) post-facto, post-first sale restrictions on fair use non-privity contractual limitations on player choice * Copyright abuse lawsuit ask court to void copyright until TPM's removed use "limited times", anti-trust, and fair use rights is this a "civil rights" suit * Political actions * A law prohibiting TPM's on published works. the temptation to abuse is to high removes possibility of criminalizing fair use removes confusion re: first sale etc. reduces cost / complexity of consumer electronics * Grass roots actions * Letter writing campaign to media companies and mfgs demand no scrambling pledge demand no region code pledge demand interoperability (no player patent) pledge demand open standards (to allow minority platforms) demand respect of fair use and first sale demand pursuit of only "commercial" pirates object to being slandered as crooks pledge no use beyond fair use (no-piracy pledge) threaten above actions etc. -- the "or else" clause CC senators and representatives Shoot down these, suggest others. We have the community's attention now. If anytime is the time to act... it is NOW! John Zulauf private netizen From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 1 14:07:29 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA01955 for dvd-discuss-outgoing; Tue, 1 Aug 2000 14:07:29 -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 OAA01938 for ; Tue, 1 Aug 2000 14:07:03 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id OAA20283 for dvd-discuss@eon.law.harvard.edu; Tue, 1 Aug 2000 14:11:07 -0400 Date: Tue, 1 Aug 2000 14:11:02 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] review of latest "Authority" doc Message-ID: <20000801141102.H19931@eldritchpress.org> References: <20000801004215.A19612@eldritchpress.org> <200008011517.LAA13325@soggy-fibers.ai.mit.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <200008011517.LAA13325@soggy-fibers.ai.mit.edu>; from rst@ai.mit.edu on Tue, Aug 01, 2000 at 11:17:02AM -0400 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, Aug 01, 2000 at 11:17:02AM -0400, Robert S. Thau wrote: > Eric Eldred writes: > > I wonder about a few things (references would be > > easier if the lines were numbered). > > Numbered version of the TeX source in > > http://www.ai.mit.edu/people/rst/dmca/auth.txt > > though the numbers will change in successive drafts. > > > Under "Pay-per-view cable": > > * "Circumvention" on our present reading, would consist > > of measures which defeat the above check, by, for instance, > > fooling the cable company into downloading a key when the > > user hasn't paid for a program, or filching keys from > > another customer's set-top box. > > > > Devil's advocate: why isn't DeCSS "filching keys"? > > > > (Maybe we need to explain more about how CSS uses title keys > > and player keys to decrypt. We have to make it clear that > > neither using a set-top box legally nor Xing nor DeCSS do > > anything different, functionally.) > > I try to discuss this point in my section on "False, pretextual > encryption"; what about that discussion is unsatisfactory? > > > This point appears a little later, under "CSS, DeCSS and..." > > > > The word "encryption" is brought up, but then ignored while > > there is a discussion first of "access control." Perhaps > > CSS "access control" could be temporarily identified with > > "decoding of title keys on the purchased disk"? > > But "CSS access control" is an oxymoron; how can a phrase without a > referent be identified with anything? well, plaintiffs have successfully confused the access with the decryption. but are there not separate disc title keys and player keys, and separate processes for authentication from decryption? so authentication might be something like access. and decryption for the later process of descrambling. > > Then "encryption" could be discussed, in terms of "scrambling," > > without being technical--your point about MPEG needs to be > > higher up. Then the discussion of "False, pretextual > > encryption" could be much shorter, I think. And the > > discussion of "Encryption not required for access control" > > is mostly irrelevant, is it not? > > I'm really not sure what you're getting at here --- the "Encryption > not required for access control" section really boils down to the > point about MPEG. yes, if you are saying that "encryption" is not "access" then fine. but then "access" needs to be defined better. and if you are saying that the law does not require encryption, so what? decryption could still be illegal. > It could perhaps be moved ahead of the detailed discussion of CSS > "cryptography", but --- perhaps this is the programmer in me speaking > --- I feel uncomfortable not showing in some technical detail that CSS > does in fact function the way that Marks describes it, as market > control and not access control. > > > In the section, "Authority not granted to the party > > performing the encryption," we need to state outright that > > plaintiffs are deliberately obfuscating the terms of > > "authority"--their authority model, it is plain, has to > > be that of licensing players. Whereas, if the interpretation > > of "circumvention" and "authority" is that of keeping > > people from playing counterfeit discs or copying them, then > > licensing at first sale cannot work--but neither can this > > other means of licensing--because one can still play a > > counterfeit disc on a licensed player, since it contains > > the right keys. (However, there are effective means of > > security--it is just that MPAA relied on some technical > > means they should not have relied on. Then when this > > was exposed and they learned of it, instead of correcting > > their security program, they tried to suppress information > > by suing the magazine 2600.) > > Ummm... this is the point of the first sale section, which discusses > how the plaintiffs could have remedied the problem by supplying a > shrink-wrap license with the DVDs, but chose not to do so. well, there is a slight difference between the range of first sale and fair use. > > We also need to bring together the separate points about > > reverse engineering, freedom from patent or licensing control, > > first amendment protection of computer code and the foolishness > > of trying to make expressions illegal, and the importance to > > the development of the LiViD player of the DeCSS reverse > > engineering. We need to establish that DeCSS has a use > > beyond descrambling and copying. > > We do need to establsh that alternative CSS implementations, including > DeCSS, have a use beyond descrambling and coypring --- presumably in > the facts of the case at the top. I've been avoiding mentioning > LiViD specifically because I'm trying to avoid the appearance of > open-source special pleading; the reason I talk about region coding a > lot is to emphasize that even a closed-source DVD player development > might have reasons for not wanting a DVDCCA license. But I guess it's > impossible to avoid completely; it's one of the facts of the case, and > we can't run away from it. > > As for "bringing things together", where and how? Bear in mind that > when all of the "need quote here" bits are replaced with real quotes > we're probably around thirty pages. No matter, if defense just wants to incorporate parts of this. I just would like to see the arguments straight and easy to understand. > > Finally, we need to say more about the other uses of LiViD > > players and DVD players and recorders under Linux. If the > > authority model of DVD-CCA is followed, then the movie > > industry would have control over production of all DVD > > players, even if they were intended only to record computer > > data--if in some way somebody could use them to re-record > > movie DVDs. (It's not just, I believe, that DVD movies are most > > of the market--who knows what comes next, books, music, > > computer data from the space program, or what.) Would not > > Senator Ashcroft's video card have to be licensed too, since > > it might be construed as an apparatus to bypass access and > > copy the video stream, if it is not required to enforce > > Macrovision? (Encryption being only one part of control.) > > Well, yes --- that's why I quote the bit about the video card. But I > don't see that it's necessary to drag LiViD in there; I think it's > more effective when discussing legislative intent to just let them > speak for themselves, at length, so no one can see we are twisting > their words or taking them out of context. > > > And a short explanation of how Linux is developed and how > > nobody including Linus could ever guarantee that the DVD-CCA > > license restrictions could ever be carried out, needs to be > > part of the record. > > Hard to do without having the license. And they have given licenses > to players developed for Linux, in any event, which may (we can't > know) have exceptions. Well, there has been plenty of evidence introduced about Linux and its development. And it seems to me that the case might just be about LiViD instead of DeCSS. I would hate to see DeCSS legal but LiViD not, or vice versa. And Ashcroft is very good. I would not object if you wanted to explain the implications of that, instead of ending rather abruptly and forcing the reader to figure it out for herself. Sorry I don't have more time to look at the new draft, but I'll try late tonight. Thanks for taking the time to respond to my numerous comments. -- "Eric" Eric Eldred Eldritch Press mailto:Eldred@EldritchPress.org http://www.eldritchpress.org/EricEldred.vcf From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 1 14:09:00 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA02532 for dvd-discuss-outgoing; Tue, 1 Aug 2000 14:09:00 -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 OAA02529 for ; Tue, 1 Aug 2000 14:08:59 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id ; Tue, 1 Aug 2000 11:08:53 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1D88@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] fair use again Date: Tue, 1 Aug 2000 11:08:50 -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: Robert S. Thau [mailto:rst@ai.mit.edu] > Sent: Tuesday, August 01, 2000 10:39 AM > To: dvd-discuss@eon.law.harvard.edu > Subject: RE: [dvd-discuss] fair use again > > > Richard Hartman writes: > > Moreover, there is a clause in the DMCA itself that states > > that it does not override fair use. > > Yes; they were certainly aware of the need to preserve fair use. It's > a different question whether they actually did. 1201(a) preserves > fair use rights, but it also bans trafficing in technical materials > which are effectively required to exercise those rights. They didn't > make fair use illegal; they just made it impossible to exercise fair > use rights without breaking the law. Neat, huh? I am not so sure. I believe that this interpretation is due to a misreading (although I may be wrong). You are chasing your tail by buying into the MPAA's reading of the law. What is forbidden is traffiking in circumvention devices, not access devices. Circumvention is access without authorization. Here is where 1201 betrays us by saying "authorization of the copyright holder" ... ignoring the fact that authorization could come from other sources, such as the fair use umbrella. But since the law can not be interpreted so as to prevent fair use, the reading must exclude "from the copyright holder" and stop at "without authorization". Conversely (and probably easier to argue) there must be an implicit addition similar to "without the authorization of the copyright holder, or other legitimate authorization". > Unfortunately, trying to argue that for DVDs necessarily involves > a hypothetical case in which circumvention of CSS is required to > achieve fair use, and you can look at the LOC transcript to see what > that looks like. Robin Gross of the EFF started arguing this point, > only to be confronted with the argument that in her *particular* case, > whatever fair use was needed could have been achieved by getting the > same movie on VHS. To make the point clear, you have to come up with > a complete hypothetical case which leaves the plaintiffs no wriggle > room; Reconstruct the case using a video not available on VHS. But that is not the thrust of my argument. The law itself is contradictory in that it specifically states that it will not abrogate fair use, and it also specifically states that authorization must come from the copyright holder. These two clauses are in conflict, a conflict that is 100% internal to the law itself. This conflict must be resolved in order for the law to be enforcable. -- -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 Aug 1 14:25:44 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA06546 for dvd-discuss-outgoing; Tue, 1 Aug 2000 14:25:44 -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 OAA06543 for ; Tue, 1 Aug 2000 14:25:42 -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 <0FYM00LV3LLC36@mta5.snfc21.pbi.net> for dvd-discuss@eon.law.harvard.edu; Tue, 1 Aug 2000 11:20:00 -0700 (PDT) Date: Tue, 01 Aug 2000 11:45:18 -0700 From: Paul Hsieh Subject: Re: [dvd-discuss] emphasis on the "real" crime In-reply-to: <398700F2.38EA3C34@mninter.net> To: dvd-discuss@eon.law.harvard.edu Message-id: <0FYM00LV4LLC36@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 Chris Moseng wrote: > mw@themail.com wrote: > > I am aware the DMCA attemps to restrict the circumventing of > > encryption/device. I think we all know the 1st amendment by > > now(congress shall enact no law that restricts speech)... > > > But maybe it will help if we put a little emphasis on what the courts > > and the MPAA MUST AGREE as the "true culprit". > > > The person(s) who leaked the CSS code should be blamed. > > A few problems. The MPAA has no legal recourse against the company > (Xing) that made the reverse engineering possible (read: easy). The > DVDCCA could sue them for breach of contract somehow, but it's not > necessary if the MPAA can win this case. The MPAA has no direct legal > interest in CSS because they set up this dummy corporation specifically > for this purpose. This is why the DVDCCA is using their only legal leg, > misappropriation of trade secrets, in their case in California. Actually my recollection of the licence is that Xing should technically forfeit a $1 million bond for allowing the secret to be breached through a lack of implementation safe guards. (Assuming that indeed the safe guards were not implemented -- encrypting the player keys, disabling common debuggers, etc.) -- Paul Hsieh qed@pobox.com From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 1 14:34:46 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA06818 for dvd-discuss-outgoing; Tue, 1 Aug 2000 14:34:46 -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 OAA06815 for ; Tue, 1 Aug 2000 14:34:45 -0400 Received: from sites.inka.de (puric.inka.de [212.227.14.17]) by mail.inka.de with esmtp id 13Jgrw-0005DO-00; Tue, 1 Aug 2000 20:34:24 +0200 Received: from localhost by sites.inka.de with local id 13Jgrz-0004Q1-00; Tue, 1 Aug 2000 20:34:27 +0200 Date: Tue, 1 Aug 2000 20:34:27 +0200 From: Sham Gardner To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] emphasis on the "real" crime Message-ID: <20000801203427.A13075@inka.de> References: <398700F2.38EA3C34@mninter.net> <0FYM00LV4LLC36@mta5.snfc21.pbi.net> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0i In-Reply-To: <0FYM00LV4LLC36@mta5.snfc21.pbi.net>; from qed@pobox.com on Tue, Aug 01, 2000 at 11:45:18AM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, Aug 01, 2000 at 11:45:18AM -0700, Paul Hsieh wrote: > Actually my recollection of the licence is that Xing should technically > forfeit a $1 million bond for allowing the secret to be breached If that's the case it would mean a similar bond would be required of a linux player. A hole of sorts in the "licenses are available at no charge" argument. Sham -- http://sites.inka.de/risctaker/DeCSS/ "The first speech censored, the first thought forbidden, the first freedom denied, chains us all irrevocably." (Jean-Luc Picard) From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 1 15:08:54 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA07212 for dvd-discuss-outgoing; Tue, 1 Aug 2000 15:08:54 -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 PAA07209 for ; Tue, 1 Aug 2000 15:08:51 -0400 Message-ID: <20000801190759.29838.qmail@web513.mail.yahoo.com> Received: from [131.44.121.4] by web513.mail.yahoo.com; Tue, 01 Aug 2000 12:07:59 PDT Date: Tue, 1 Aug 2000 12:07:59 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] fair use again To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-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: > Again I point to Vault v Quaid, where this situation > specifically came up. If the user has fair use > rights to make one backup copy, then the user has a > right to buy software that allows him to make the > copy, and a vendor has the right to sell software > to allow the user to make the copy. Somewhere there is a quote in the legislative history that all existing caselaw on reverse engineering is preserved. This would include Vault v. Quaid. It occurs to me that 1201(f) is explicitly about providing exceptions for computer programs while 1201(a) doesn't mention software specifically in its list of things that are collectively called 'black boxes' in the Congressional record. This cannot be an accident. Embedded in each of 1201(f)(1,2,3) is a requirement that the interoperability be 'noninfringing'. Since 1201(a)(2) is set-aside when the conditions of 1201(f)(2,3) are met, and fair use would clearly be relevent to satisfying the 'noninfringing' requirement, I think the textual foundation for fair use as a defense to (a)(2) is quite solid for the case of computer programs. The rather odd thing about allowing a reverse engineering exception is that it would be difficult to imagine a circumvention device that was not created by reverse engineering (I suppose trade secret misappropriation is technically possible, but this was previously illegal). I would argue that every reverse engineered computer program that does not inherently commit simple copyright infringement is clearly allowed by 1201(f). __________________________________________________ Do You Yahoo!? Kick off your party with Yahoo! Invites. http://invites.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 1 15:22:48 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA08587 for dvd-discuss-outgoing; Tue, 1 Aug 2000 15:22:48 -0400 Received: from samsara.law.cwru.edu (samsara.LAW.CWRU.Edu [129.22.186.16]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA08584 for ; Tue, 1 Aug 2000 15:22:47 -0400 Received: from samsara.law.cwru.edu (localhost [127.0.0.1]) by samsara.law.cwru.edu (8.9.3/8.9.3) with ESMTP id PAA22522; Tue, 1 Aug 2000 15:22:05 -0400 Message-Id: <200008011922.PAA22522@samsara.law.cwru.edu> To: dvd-discuss@eon.law.harvard.edu cc: junger@samsara.law.cwru.edu Subject: Re: [dvd-discuss] first amendment defense In-reply-to: Your message of "Mon, 31 Jul 2000 23:04:38 EDT." Date: Tue, 01 Aug 2000 15:21:35 -0400 From: "Peter D. Junger" Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Consilgere@cs.com writes: : By that logic, shooting someone can't be deemed illegal because it can be : expressive. There has to be a middle ground. Not everything with : expressiveness is protected. : I would submit to you, that a reasonable compromise would be that source code : : is protected iff it cannot be compiled / interpreted / whatever in its : current state. That would make pseudocode protected, as well as hard copies : of source code. That should suffice any issues Computer Scientists have with : : free expression. As for the remaining source / object code, it should be : treated as a physical object. : I feel like saying this is going to generate some ill feelings, so disclaimer : : here: DMCA is bad law, but it has nothing to do with free speech. There is a shooting someone, unless justifiable, is illegal, even if it is expressive. Ordering someone under one's control to shoot someone is equally illegal, even though giving the order is speech. Telling someone how to shoot someone is not illegal, and is protected by the first amendment. Making a circumvention device may be illegal and not protected by the first amendment. But telling someone how to make a circumvention device is not illegal, one hopes, for it is clearly protected by the first amendment. All ``code''--whether source or object-- is pure information, pure pattern, pure text that is protected by the first amendment. Loading the code into a computer that is capable of executing it arguably is making a device, and the manufacture of a device can perhaps be forbidden. But communicating the code without loading it into a computer that can execute it cannot be forbidden---that communication is protected by the first amendment. Of course not everthing with expressiveness is protected. But all communication of information over the internet and the World Wide Web is, unless the information falls into some special category like obsecenity or endangers national security or something like that. Of course, the courts could hold that computer programs are no more entitled to constitutional protection than obscenity is. I doubt if they will. I hope that they won't. I write in haste, as I have to go to a meeting. But this was just too silly, and too dangerous, not to respond to. -- 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 Aug 1 16:16:36 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA09976 for dvd-discuss-outgoing; Tue, 1 Aug 2000 16:16:36 -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 QAA09973 for ; Tue, 1 Aug 2000 16:16:35 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id ; Tue, 1 Aug 2000 13:16:36 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1D89@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] emphasis on the "real" crime Date: Tue, 1 Aug 2000 13:16:33 -0700 MIME-Version: 1.0 X-Mailer: Internet Mail Service (5.5.2650.21) Content-Type: text/plain; charset="iso-8859-1" Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > -----Original Message----- > From: Chris Moseng [mailto:moseng@mninter.net] ... > CSS is the TPM. CSS determines authorization at playtime by > reading the > keys off the disk. DeCSS does it in the same way, so it is compliant. > Compliant implementations never circumvent. Ok, an analogy. You have a gate with a guard in front of it. When someone approaches, the guard says "the geese fly high" and if the person responds "but the ducks walk south for the winter", he gets in. Circumvention would be: a) shooting the guard b) climbing over the fence 100 yards away from the guard But if you respond appropriately, it is circumvention regardless, of how you obtained the response phrase? -- -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 Aug 1 16:54:47 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA13327 for dvd-discuss-outgoing; Tue, 1 Aug 2000 16:54:47 -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 QAA13306 for ; Tue, 1 Aug 2000 16:54:46 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id ; Tue, 1 Aug 2000 13:54:47 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1D8A@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] emphasis on the "real" crime Date: Tue, 1 Aug 2000 13:54:41 -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 Typo. The final question should read: > But if you respond appropriately, it is _not_ circumvention regardless, > of how you obtained the response phrase? -- -Richard M. Hartman hartman@onetouch.com 186,000 mi./sec ... not just a good idea, it's the LAW! > -----Original Message----- > From: Richard Hartman [mailto:hartman@onetouch.com] > Sent: Tuesday, August 01, 2000 1:17 PM > To: 'dvd-discuss@eon.law.harvard.edu' > Subject: RE: [dvd-discuss] emphasis on the "real" crime > > > > > > -----Original Message----- > > From: Chris Moseng [mailto:moseng@mninter.net] > ... > > CSS is the TPM. CSS determines authorization at playtime by > > reading the > > keys off the disk. DeCSS does it in the same way, so it is > compliant. > > Compliant implementations never circumvent. > > Ok, an analogy. You have a gate with a guard in front of it. > When someone approaches, the guard says "the geese fly high" > and if the person responds "but the ducks walk south for the > winter", he gets in. > > Circumvention would be: > a) shooting the guard > b) climbing over the fence 100 yards away from the guard > > But if you respond appropriately, it is circumvention regardless, > of how you obtained the response phrase? > > -- > -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 Aug 1 17:17:13 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA15390 for dvd-discuss-outgoing; Tue, 1 Aug 2000 17:17:13 -0400 Received: from tbird.iworld.com ([63.236.72.237]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA15387 for ; Tue, 1 Aug 2000 17:17:11 -0400 Received: (from nobody@localhost) by tbird.iworld.com (8.10.2/8.10.2) id e71LGr509352; Tue, 1 Aug 2000 17:16:53 -0400 Date: Tue, 1 Aug 2000 17:16:53 -0400 Message-Id: <200008012116.e71LGr509352@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] emphasis on the real crime Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Richard Hartman wrote: >Reply-To: dvd-discuss@eon.law.harvard.edu >Typo. The final question should read: > >> But if you respond appropriately, it is _not_ circumvention regardless, >> of how you obtained the response phrase? > I can imagine tickling the guard to the point of revealing the phrase walking five steps back and then telling him the phrase. What do you do if the guard doesn't speak the same language unless you're both drunk (ie running windows)? Rares >-- >-Richard M. Hartman >hartman@onetouch.com >186,000 mi./sec ... not just a good idea, it's the LAW! > > >> -----Original Message----- >> From: Richard Hartman [mailto:hartman@onetouch.com] >> Sent: Tuesday, August 01, 2000 1:17 PM >> To: 'dvd-discuss@eon.law.harvard.edu' >> Subject: RE: [dvd-discuss] emphasis on the "real" crime >> >> >> >> >> > -----Original Message----- >> > From: Chris Moseng [mailto:moseng@mninter.net] >> ... >> > CSS is the TPM. CSS determines authorization at playtime by >> > reading the >> > keys off the disk. DeCSS does it in the same way, so it is >> compliant. >> > Compliant implementations never circumvent. >> >> Ok, an analogy. You have a gate with a guard in front of it. >> When someone approaches, the guard says "the geese fly high" >> and if the person responds "but the ducks walk south for the >> winter", he gets in. >> >> Circumvention would be: >> a) shooting the guard >> b) climbing over the fence 100 yards away from the guard >> >> But if you respond appropriately, it is circumvention regardless, >> of how you obtained the response phrase? >> >> -- >> -Richard M. Hartman >> hartman@onetouch.com >> >> 186,000 mi./sec ... not just a good idea, it's the LAW! >> 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 Tue Aug 1 17:52:35 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA16973 for dvd-discuss-outgoing; Tue, 1 Aug 2000 17:52:35 -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 RAA16970 for ; Tue, 1 Aug 2000 17:52:34 -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 RAA26586 for ; Tue, 1 Aug 2000 17:52:17 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id RAA14842; Tue, 1 Aug 2000 17:52:15 -0400 (EDT) Date: Tue, 1 Aug 2000 17:52:15 -0400 (EDT) Message-Id: <200008012152.RAA14842@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: RE: [dvd-discuss] fair use again In-Reply-To: <5A8391CA2D9ED311AFAA080009D982B10B1D88@mail2.onetouch.com> References: <5A8391CA2D9ED311AFAA080009D982B10B1D88@mail2.onetouch.com> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Richard Hartman writes: > > Yes; they were certainly aware of the need to preserve fair use. It's > > a different question whether they actually did. 1201(a) preserves > > fair use rights, but it also bans trafficing in technical materials > > which are effectively required to exercise those rights. They didn't > > make fair use illegal; they just made it impossible to exercise fair > > use rights without breaking the law. Neat, huh? > > I am not so sure. I believe that this interpretation is due > to a misreading (although I may be wrong). You are chasing your > tail by buying into the MPAA's reading of the law. You may be right; my thinking on fair use does presume an expansive reading of the law; with a more reasonable view of 1201(a) this all makes more sense. However, you can't deal so easily with 1201(b). But the plaintiffs aren't talking about 1201(b) anyway (I'm not sure why; perhaps they just don't want to invite the Macy's Thanksgiving Day Parade of Horribles into the courtroom). > > Unfortunately, trying to argue that for DVDs necessarily involves > > a hypothetical case in which circumvention of CSS is required to > > achieve fair use, and you can look at the LOC transcript to see what > > that looks like. Robin Gross of the EFF started arguing this point, > > only to be confronted with the argument that in her *particular* case, > > whatever fair use was needed could have been achieved by getting the > > same movie on VHS. To make the point clear, you have to come up with > > a complete hypothetical case which leaves the plaintiffs no wriggle > > room; > > Reconstruct the case using a video not available on VHS. And they ask whether analog projection suffices, and why you can't just use a licensed DVD player to play the thing. (Both in the transcript, IIRC, though I haven't checked). You'd need to postulate a region-coded DVD, or something like that, unavailable in other media, and explain the importance of all those restrictions. And while you're doing this, in detail, the plaintiffs can say (correctly) that you're postulating a hypothetical situation which doesn't have much to do with the facts at hand. > But that is not the thrust of my argument. The law itself is > contradictory in that it specifically states that it will not abrogate > fair use, and it also specifically states that authorization must come > from the copyright holder. These two clauses are in conflict, a conflict > that is 100% internal to the law itself. This conflict must be > resolved in order for the law to be enforcable. Well, depends what's meant by access control, as you indicated above... rst From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 1 18:10:07 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA17320 for dvd-discuss-outgoing; Tue, 1 Aug 2000 18:10:07 -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 SAA17317 for ; Tue, 1 Aug 2000 18:10:06 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id ; Tue, 1 Aug 2000 15:10:08 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1D8B@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] fair use again Date: Tue, 1 Aug 2000 15:09:57 -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 > -----Original Message----- > From: Robert S. Thau [mailto:rst@ai.mit.edu] > Sent: Tuesday, August 01, 2000 2:52 PM > To: dvd-discuss@eon.law.harvard.edu > Subject: RE: [dvd-discuss] fair use again > > > Richard Hartman writes: > > > Yes; they were certainly aware of the need to preserve > fair use. It's > > > a different question whether they actually did. 1201(a) > preserves > > > fair use rights, but it also bans trafficing in > technical materials > > > which are effectively required to exercise those rights. > They didn't > > > make fair use illegal; they just made it impossible to > exercise fair > > > use rights without breaking the law. Neat, huh? > > > > I am not so sure. I believe that this interpretation is due > > to a misreading (although I may be wrong). You are chasing your > > tail by buying into the MPAA's reading of the law. > > You may be right; my thinking on fair use does presume an expansive > reading of the law; with a more reasonable view of 1201(a) this all > makes more sense. However, you can't deal so easily with 1201(b). > But the plaintiffs aren't talking about 1201(b) anyway (I'm not sure > why; perhaps they just don't want to invite the Macy's Thanksgiving > Day Parade of Horribles into the courtroom). > > > > Unfortunately, trying to argue that for DVDs necessarily involves > > > a hypothetical case in which circumvention of CSS is required to > > > achieve fair use, and you can look at the LOC transcript > to see what > > > that looks like. Robin Gross of the EFF started arguing > this point, > > > only to be confronted with the argument that in her > *particular* case, > > > whatever fair use was needed could have been achieved by > getting the > > > same movie on VHS. To make the point clear, you have to > come up with > > > a complete hypothetical case which leaves the plaintiffs > no wriggle > > > room; > > > > Reconstruct the case using a video not available on VHS. > > And they ask whether analog projection suffices, and why you can't > just use a licensed DVD player to play the thing. (Both in the > transcript, IIRC, though I haven't checked). You'd need to postulate > a region-coded DVD, or something like that, unavailable in other > media, and explain the importance of all those restrictions. And > while you're doing this, in detail, the plaintiffs can say (correctly) > that you're postulating a hypothetical situation which doesn't have > much to do with the facts at hand. Except that region coded DVDs are precisely why that Norwegian kid -created- DeCSS ... I believe that is even in the testimony. > > But that is not the thrust of my argument. The law itself is > > contradictory in that it specifically states that it will > not abrogate > > fair use, and it also specifically states that > authorization must come > > from the copyright holder. These two clauses are in > conflict, a conflict > > that is 100% internal to the law itself. This conflict must be > > resolved in order for the law to be enforcable. > > Well, depends what's meant by access control, as you indicated > above... Not so sure what the dependancy on "access control" here is, All of my thinking is going to the source of authorization. The text of 1201 states "authorization of the copyright holder" explicitly but =implies= other sources of authorization by virtue of purporting not to negate fair use permissions. The way I see it, this argument does not involve "access control" at all except that it is the use of the access control device that must be authorized by one source or another. -- -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 Aug 1 18:24:29 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA17972 for dvd-discuss-outgoing; Tue, 1 Aug 2000 18:24:29 -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 SAA17969 for ; Tue, 1 Aug 2000 18:24:28 -0400 From: wendy@seltzer.com Message-Id: <200008012224.SAA17969@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 P5BD94JL; Tue, 1 Aug 2000 18:25:14 -0400 Subject: Re: [dvd-discuss] Does DeCSS circumvent? To: dvd-discuss@eon.law.harvard.edu Content-type: text/plain; charset="iso-8859-1" Mime-version: 1.0 Date: Tue, 1 Aug 2000 18:25 -0400 Content-Transfer-Encoding: 8bit X-MIME-Autoconverted: from quoted-printable to 8bit by eon.law.harvard.edu id SAA17970 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu John Schulien wrote: >What's wrong with saying that DeCSS "implements" >CSS instead of "circumvents" or "bypasses" it? Even better. Chris's analysis of implementation at makes the point well. from Chris Moseng: >As I have been arguing, though, this case is not one that 1201 should >"protct" copyright holders from, and the MPAA should not be the party >litigating it. This is an issue of an unsatisfactory implementation of >CSS because it does not follow the license restrictions of the DVDCCA. > >The MPAA should not be allowed to bring legitimate implementations under >1201 "circumvention device" charges, because they then could control the >player market entirely by suing the manufacturers that offered >legitimate license-free players, which would be out of the DVDCCA's >reach legally, or by suing manufacturers of devices which implement CSS >that rubbed them the wrong way. These manufacturers are not providing >devices that circumvent authority, they circumvent market controlling >licenses that are drawn up by the DVDCCA (but not by the copyright >holders, because that would be copyright misuse); licenses that are not >relevant because compliant implementations can be legitimately created >through reverse engineering. > >CSS is the TPM. CSS determines authorization at playtime by reading the >keys off the disk. DeCSS does it in the same way, so it is compliant. >Compliant implementations never circumvent. What hapens to the data >after access is authorized is not within the copyright holder's rights >to control. The technological limitations imposed by DVDCCA licenses are >not a part of the authorization performed by CSS, they are license >restrictions, and can be avioded legitimately through reverse >engineering and implementing CSS in a non license-restricted device. We do still have to fight Jim Taylor's argument, that perhaps 1201 requires that implementing devices be authorized by the copyright owner. DeCSS isn't identical to licensed players in the MPAA's eyes because it's not encased so as to prevent plaintext from leaking out. Whether or not the studios can impose a lack of authority on the DVD-purchaser, they want even more badly to block developers in the middle from offering tools/devices. One problem with reading 1201(a)(2) to disallow a player whose (a)(1) use would not be unauthorized is that the use is now an (a)(2)(B) "commercially significant purpose or use other than to circumvent a technological measure that effectively controls access to a work protected under this title." >The same authorization tests are performed by licensed and non-licensed >compliant implementations and they achieve identical results. Authorized >players, authorized viewing devices and authorized hair color must >never, and do never, enter into it. Kaplan ruling that this device >violates 1201 codifies the DVDCCA post-authorization license >restrictions as parts of the TPM, perpertually restricting the >post-authorization abilities of DVD players at the behest of the >copyright holders, AND writes the plaintiffs a legal blank check under >1201 to pursue any CSS implementation as trafficking. > >DeCSS is not a black box that tricks CSS into giving you access more >often than you are authorized. This is not stealing cable or PPV >satellite transmissions. You are authorized exactly as often. DeCSS is a >legitimate cable converter, provided so you do not have to rent one from >your local cable monopoly, and it provides identical access. The >plaintiffs did not disprove this in trial. Wendy Seltzer -- wendy@seltzer.com Openlaw/DVD - http://eon.law.harvard.edu/openlaw/DVD/ From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 1 19:27:51 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA18990 for dvd-discuss-outgoing; Tue, 1 Aug 2000 19:27:51 -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 TAA18987 for ; Tue, 1 Aug 2000 19:27:50 -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 TAA04413 for ; Tue, 1 Aug 2000 19:27:33 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id TAA15264; Tue, 1 Aug 2000 19:27:31 -0400 (EDT) Date: Tue, 1 Aug 2000 19:27:31 -0400 (EDT) Message-Id: <200008012327.TAA15264@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Does DeCSS circumvent? In-Reply-To: <200008012224.SAA17969@eon.law.harvard.edu> References: <200008012224.SAA17969@eon.law.harvard.edu> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu wendy@seltzer.com writes: > We do still have to fight Jim Taylor's argument, that perhaps 1201 requires > that implementing devices be authorized by the copyright owner. DeCSS > isn't identical to licensed players in the MPAA's eyes because it's not > encased so as to prevent plaintext from leaking out. Whether or not the > studios can impose a lack of authority on the DVD-purchaser, they want even > more badly to block developers in the middle from offering tools/devices. Which can be done by investigating the consequences of that reading ("authorization of means", as Bryan put it) --- indefinite patent-like grants, with the attendant horribles --- or by demonstrating clear conflict with expressed congressional intent. (Both arguments expressed at length you-know-where). rst From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 1 19:44:32 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA19122 for dvd-discuss-outgoing; Tue, 1 Aug 2000 19:44:32 -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 TAA19119 for ; Tue, 1 Aug 2000 19:44:31 -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 TAA05949 for ; Tue, 1 Aug 2000 19:44:13 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id TAA15338; Tue, 1 Aug 2000 19:44:12 -0400 (EDT) Date: Tue, 1 Aug 2000 19:44:12 -0400 (EDT) Message-Id: <200008012344.TAA15338@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Authority --- some fixups. Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I've put up a revised version of the authority paper; differences between this and the version reviewed by Eldred are appended below. It's mostly cleanups this time (especially sourcing the quotes); however, I did also clean up the "Encryption not required" section. Which brings up the question of "what next". The point of these cleanups was at least to try to get it into shape for submission to the copyright office as a comment on the DMCA (with Bryan's concurrence, of course). Beyond that, I've considered announcing it elsewhere. It's also the best candidate we have for a brief to be submitted at the trial --- but before we could consider doing that, the thing would need a thorough sanity check and going over from a Real Lawyer(TM). The URLs are: HTML: http://www.ai.mit.edu/people/rst/dmca/auth/auth.html Postscript: http://www.ai.mit.edu/people/rst/dmca/auth.ps plaintext: http://www.ai.mit.edu/people/rst/dmca/auth.txt (The plaintext has line numbers). Differences follow: *** auth.tex.2000.07.31 Tue Aug 1 18:47:05 2000 --- auth.tex Tue Aug 1 18:54:07 2000 *************** *** 12,28 **** \section{Introduction} ! The plaintiff's case in ! Universal et al. v. Corley relies on an interpetation of the ! Digital Millenium Copyright Act (DMCA), specifically 17 USC 1201(a), ! which we regard as fundamentally flawed. This section of the law ! provides protection for ``access control mechanisms'', which as we ! shall show, was clearly intended by Congress to mean mechanisms which ! perform some sort of affirmative check that a viewer is authorized to ! view a particular work. Several such systems have been deployed by ! the movie studios to protect their work, including one (codeveloped ! with Circuit City, and marketed to consumers under the name ``Divx'') ! which actually checked authority to view works distributed on DVD disk. However, the ``Content Scrambling System'' supposedly ``hacked'' by --- 12,28 ---- \section{Introduction} ! The plaintiff's case in Universal et al. v. Corley relies on an ! interpetation of the Digital Millenium Copyright Act (DMCA), ! specifically 17 USC 1201(a), which we regard as fundamentally flawed. ! This section of the law provides protection for ``access control ! mechanisms'', which as we shall show, was clearly intended by Congress ! to mean mechanisms which perform some sort of affirmative check that a ! viewer is authorized to view a particular work. Several such systems ! have been deployed by the movie studios to protect their work, ! including one (codeveloped with Circuit City, and marketed to ! consumers under the name ``Divx'') which actually checked the ! authority of a particular viewer to view works distributed on DVD disk. However, the ``Content Scrambling System'' supposedly ``hacked'' by *************** *** 30,45 **** player will view {\em any} CSS formatted DVD without performing any check that the user is authorized to view it. Plaintiffs claim protection for it anyway by misreading the law to state that the ! ``authority of the copyright owner'' referred to in the statute is ! not a grant of authority to view any particular work, but rather ! authority to implement the CSS process {\em itself}. Their assertion ! is in conflict with the text of the law, with the legislative record ! of Congress enacting the law, and with enduring, basic constitutional ! principles regarding intellectual property protection. Further, were ! their interpretation to stand, it would give them an awesome degree of ! power over the deployment of players for their movies and other ! protected content, far in excess of what was intended by Congress, and ! with very deleterious effects on the public interest. \subsection*{Acknowledgments} --- 30,47 ---- player will view {\em any} CSS formatted DVD without performing any check that the user is authorized to view it. Plaintiffs claim protection for it anyway by misreading the law to state that the ! ``authority of the copyright owner'' referred to in the statute is not ! a grant of authority to view any particular work, but rather authority ! to implement the CSS process {\em itself} --- the authority to govern ! not merely the {\em act} of access, but the permissible {\em means} of ! access. Their assertion is in conflict with the text of the law, with ! the legislative record of Congress enacting the law, and with ! enduring, basic constitutional principles regarding intellectual ! property protection. Further, were their interpretation to stand, it ! would give them an awesome degree of power over the deployment of ! players for their movies and other protected content, far in excess of ! what was intended by Congress, and with very deleterious effects on ! the public interest. \subsection*{Acknowledgments} *************** *** 46,52 **** This paper is the result of discussions on the \texttt{dvd-discuss} mailing list run by the Berkman Center at Harvard University, and has benefitted immensely from the insights of those on the list. All ! flaws are, of course, solely the fault of the author. \section{Technical facts of the case} --- 48,54 ---- This paper is the result of discussions on the \texttt{dvd-discuss} mailing list run by the Berkman Center at Harvard University, and has benefitted immensely from the insights of those on the list. All ! flaws are, of course, solely the fault of the authors. \section{Technical facts of the case} *************** *** 75,86 **** (the so-called ``Macrovision'' machinery). However, the plaintiffs and their agents have acknowledged that these mechanisms are technically distinct from CSS {\em per se}, and bound to it only ! legally by the requirements of their license [cite]. They have also included among these conditions such matters as region coding, which have nothing to do directly with either access control or copy control, which comprise between them the subject matter of the DMCA. ! [NEEDS QUOTE --- Schumann? Marks?] The defendants in this case are distributing an unlicensed implementation of the CSS technology, called ``DeCSS'', which, like the licensed implementations, can take the obscured video files stored --- 77,98 ---- (the so-called ``Macrovision'' machinery). However, the plaintiffs and their agents have acknowledged that these mechanisms are technically distinct from CSS {\em per se}, and bound to it only ! legally by the requirements of their license. They have also included among these conditions such matters as region coding, which have nothing to do directly with either access control or copy control, which comprise between them the subject matter of the DMCA. ! As the plaintiffs' witness, Robert Schumann stated in his second ! declaration: + \begin{quotation} + 23. As I also stated in my recent deposition, CSS and the decryption + of it via DeCSS has nothing to do with protecting so-called regional + coding or any mechanism which prevents consumers from fast-forwarding + through the initial audiovisual information contained on a DVD disc + (which includes copyright infringement warnings. and the like). + \end{quotation} + (Schumann supplemental declaration, June 1, paragraph 23). + The defendants in this case are distributing an unlicensed implementation of the CSS technology, called ``DeCSS'', which, like the licensed implementations, can take the obscured video files stored *************** *** 92,106 **** hardware display drivers can process it, and the conversion of the digital data to analog signals driving an actual display; the analog signals are generally processed further within a display, but those ! steps are of no concern to us). As such, it performs a function which ! is absolutely necessary to viewing the content on legitimately ! purchased DVDs to which CSS obscuration has been applied --- players ! which would clearly serve a legitimate function. The plaintiffs are suing to enjoin further distribution of DeCSS, claiming that their licensed implementations of the CSS technology provide a form of access control which is being ``circumvented'', or ! more simply, bypassed, by the unlicensed DeCSS implementation. What makes this a peculiar claim is that there is nothing about any implentation of the CSS technology, either licensed {\em or} --- 104,127 ---- hardware display drivers can process it, and the conversion of the digital data to analog signals driving an actual display; the analog signals are generally processed further within a display, but those ! steps are of no concern to us). + As such, DeCSS performs a function which is absolutely necessary to + viewing the content on legitimately purchased DVDs to which CSS + obscuration has been applied --- players which would clearly serve a + legitimate function. In fact, as testimony at the trial has shown, + DeCSS was originally written to serve as a component of such a player + (Johansen testimony, p. 619 of the trial transcript). Contrary to the + claims of the plaintiffs, it does not serve as a piracy tool; it is + clumsy to use for that purpose, and in any case, other tools for that + purpose are available, which do the job more conveniently, by + essentially parasitizing a licensed DVD player. (Trial transcript, + Reider testimony, p. 684). + The plaintiffs are suing to enjoin further distribution of DeCSS, claiming that their licensed implementations of the CSS technology provide a form of access control which is being ``circumvented'', or ! more simply, bypassed, by the unlicensed DeCSS implementation. What makes this a peculiar claim is that there is nothing about any implentation of the CSS technology, either licensed {\em or} *************** *** 322,331 **** server a particular web page to the viewer --- in the MIT case, to assure that students view only their own records. - [SHOULD PERHAPS use windows fileshares with password protection; - similar scenario, except that the encryption on the concept MAY not - just be incidental, but absent entirely] - Note that while it is common practice to encrypt data protected by the certificate mechanism, simply to protect it from potential prying eyes as it traverses the network, that does not form part of the mechanism, --- 343,348 ---- *************** *** 380,393 **** \end{quotation} Note the peculiar statement that ``Because CSS is an encryption ! technology, CSS qualifies as an access control measure''. This is our ! first clue that something funny is going on. The statutory definition ! of ``effective access control'' --- that an effective access control ! measure is one that ``requires the application of information, or a ! process or treatment, with authority of the copyright owner, to gain ! access to the work'', makes no specfic reference to encryption. ! Instead, it requires the measure to have a specific {\em effect}, one ! which, in our view, CSS does not have. But rather than relying on Mr. Gold's perhaps hasty and off-the-cuff remarks, let's examine a more elaborate version of this argument, from --- 397,411 ---- \end{quotation} Note the peculiar statement that ``Because CSS is an encryption ! technology, CSS qualifies as an access control measure''. This ! already indicates that the plaintiffs have adopted a somewhat strained ! reading of the statute. The statutory definition of ``effective ! access control'' --- that an effective access control measure is one ! that ``requires the application of information, or a process or ! treatment, with authority of the copyright owner, to gain access to ! the work'' --- makes no specfic reference to encryption, and indeed, ! as we have seen, it is perfectly possible to have an access control ! measure which does not encrypt the work it protects. But rather than relying on Mr. Gold's perhaps hasty and off-the-cuff remarks, let's examine a more elaborate version of this argument, from *************** *** 421,426 **** --- 439,446 ---- 10 PAL player. \end{verbatim} + (Transcript of LOC hearing, Stanford, pp. 248-249). + So purchasers of a DVD are not entitled to view their DVD ``on any machine they can ... make'', but {\em only} on ``a licensed device''. But that is not due to any contractual obligation they personally have *************** *** 486,492 **** believe the answer is a qualified ``no''. 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. --- 506,512 ---- believe the answer is a qualified ``no''. 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. *************** *** 500,505 **** --- 520,527 ---- message so that the recipient can read it. \end{quotation} + (Diffie and Landau, ``Privacy on the Line'', MIT Press, 1998, p. 13). + 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 *************** *** 507,513 **** 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. --- 529,535 ---- 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. 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. *************** *** 583,591 **** \subsection{Encryption not required for access control; any process could be regulated} ! All of this analysis has been based on the plaintiffs' assertion that ! any ``encryption technology'' is ``effective access control''. However, no support for this assertion may be found in the statute. Neither the definition of access control nor that of circumvention in 1201(a) requires any particular structure of the access control --- 605,627 ---- \subsection{Encryption not required for access control; any process could be regulated} ! To sum up: the plaintiffs have adopted a reading of the law which ! allows them a patent-like control over processes which are required ! to gain access to their works --- that is, once again, that the law is ! meant to give them control over not just the {\em act} of access, but ! the {\em means}. They are suing because DeCSS threatens to allow DVD ! purchases to access the works they have purchased via means which they ! have not authorized (specifically, DeCSS itself). + When asserting this control, in court and elsewhere, the plaintiffs + and their representatives are always careful to qualify it, by saying + that this right to authorize means of access extends only to ``access + control processes'', and not other kinds of processes. For instance, + as we have seen, they have been careful to state in court that CSS is + an access control process because it uses cryptography (a debatable + position in and of itself, once the nature of that cryptography is + analyzed, as we have seen). + However, no support for this assertion may be found in the statute. Neither the definition of access control nor that of circumvention in 1201(a) requires any particular structure of the access control *************** *** 619,658 **** encryption --- and the plaintiffs' reading would have the bizarre effect of denying such systems protection under the law. ! 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 ! an ``effective access control'' that it ``require the application of ! information, or a process or a treatment, with the authority of the ! copyright owner, to gain access to [a] work.'' - In short, the plaintiffs claim that as copyright owners, this statute - gives them the right to simply declare certain processes or treatments - which are required to gain access to their work, such as CSS, to be - ``effective access controls''. Having done so, they claim the right - to issue licenses for implementations of those processes, which is - fine as far as it goes. But, they also claim that any unlicensed - implementation of those processes, if unauthorized, is circumvention. - They qualify this by stating some restrictions on what constitutes an - ``effective access control'', but those restrictions themselves have - no firm grounding in the language of the law itself, and are in any - case, so vague as to be ultimately meaningless. - \subsection{Authority not granted to the party performing the ``decryption''} ! So, the plaintiffs claim that CSS is an effective access control ! measure, even though it does not effectively control access (which is ! {\em always} granted ``in the ordinary course of its operation''), ! because it is ``an encryption process'', a claim which is debatable at ! best. On these bases, they claim that the ``decryption'' can only be ! performed with their authority, as expressed in the licenses they ! grant --- authority which must be expressed in a contract such as the ! CSS license; without such a grant of authority, the plaintiffs claim, ! ``decryption'' is illegal. But, if we grant them these claims, for ! the sake of argument, then it is not clear how a home user is ever ! authorized to play a DVD. The usage scenario here is simple: the user puts their DVD into a player produced by a CSS-licensed manufacturer (say, Panasonic), and --- 655,684 ---- encryption --- and the plaintiffs' reading would have the bizarre effect of denying such systems protection under the law. ! In short, the notion that the law is restricted to processes which ! are somehow cryptographic is fallacious. If the law actually grants ! the plaintiffs the authority they claim, then they could exercise that ! authority over {\em any} process which is necessary to gain access to ! one of their works, such as, for instance, a video compression ! algorithm. Thus, they would secure the benefits of a patent on that ! process without meeting any of the requirements (originality, ! protection for a limited time), a point to which we shall return. \subsection{Authority not granted to the party performing the ``decryption''} ! But first, let us return to the specific case of CSS. To summarize ! our analysis thus far: The plaintiffs claim it is an effective access ! control measure, even though it does not effectively control access ! (which is {\em always} granted ``in the ordinary course of its ! operation''), because it is ``an encryption process'', a claim which ! is debatable at best. On these bases, they claim that the ! ``decryption'' can only be performed with their authority, as ! expressed in the licenses they grant --- authority which must be ! expressed in a contract such as the CSS license; without such a grant ! of authority, the plaintiffs claim, ``decryption'' is illegal. But, ! if we grant them these claims, for the sake of argument, then it is ! not clear how a home user is ever authorized to play a DVD. The usage scenario here is simple: the user puts their DVD into a player produced by a CSS-licensed manufacturer (say, Panasonic), and *************** *** 679,684 **** --- 705,711 ---- 6 authorized player," when you purchase the DVD. 7 MR. MARKS: That's correct. \end{verbatim} + (Stanford LOC hearing transcript, p. 249). The only contract they have is with the player manufacturer, a CSS licensee --- Panasonic, in our example --- not with the user. *************** *** 694,699 **** --- 721,728 ---- be protected by applicable copyright law. This Agreement gives you no rights to such content. \end{quotation} + (Xing player license, declaration of Chris Eddy in the California + trade-secret case, p. 5). How, then, is the plaintiffs' authority granted to the users, if not by contract (which it would have imposed no burden upon them to *************** *** 795,800 **** --- 824,830 ---- 24 That's got nothing to do, as far as I can tell, with 25 what you're talking about. \end{verbatim} + (LOC hearing transcript, p. 245) Here is what Mr. Marks had to say in response: *************** *** 814,819 **** --- 844,850 ---- 18 disks because they were encrypted with CSS. That 19 serves an access control function as well. \end{verbatim} + (LOC hearing transcript, p. 246) So, Mr. Marks suggests two ``access control'' functions for CSS. One of these functions is, in fact, copy control, not access control; *************** *** 832,837 **** --- 863,869 ---- 2 legitimate player, legitimate licensed CSS player. 3 And not be played on non-licensed players. \end{verbatim} + (LOC hearing transcript, pp. 246-247) So, the only ``access control'' function served by CSS is, by Mr. Marks own testimony, regulation of the player market --- *************** *** 863,868 **** --- 895,901 ---- 9 want, there's no restriction on saying it's a one- 10 time play, it's a two-time play. \end{verbatim} + (LOC transcript, pp. 247-248) So, again, Mr. Marks makes plain that CSS has nothing with do with seeing whether a given {\em user} gets to see a movie --- if they have *************** *** 934,939 **** --- 967,973 ---- use the next generation of computers or VCRs or whatever future device will render one or the other of these familiar devices obsolete. \end{quotation} + (Congressional record, 14 May 1998, p. S4890). Which was echoed on the other side of the aisle; here are remarks from Rep. Klug, in the final debate on the Conference Committee bill: *************** *** 964,969 **** --- 998,1004 ---- consumer electronics, telecommunications, and computer products used by businesses and consumers everyday, for perfectly legitimate purposes. \end{quotation} + (Congressional Record, 12 Oct. 1998, p. H10621) But, might it change things if a player manufactured without the cooperation of the copyright holders exposed their works to the *************** *** 1012,1017 **** --- 1047,1053 ---- technologies, fall within the proscriptions of chapter 12 of the copyright law as added by this bill. \end{quotation} + (Congressional record, 14 May 1998, pp. S4890-S4891). In this example, Sen. Ashcroft cites a device which actually bypasses a technical protection measure as {\em not} actionable circumvention *************** *** 1032,1037 **** --- 1068,1074 ---- consultative process, or without regard to the input of affected parties. \end{quotation} + (Congressional Record (House), 8 Oct. 1998, p. H10065) Note here that copyright owners are specifically denied the right to vet and approve implementations of their access control measures. In *************** *** 1050,1055 **** --- 1087,1093 ---- lawful product modifications) shall not be deemed a violation of sections 1201(a) or (b). \end{quotation} + (Congressional Record (House), 8 Oct. 1998, p. H10065) This makes plain that the {\em only} protection afforded under 1201 is against products which perform circumvention per se --- for 1201(a), *************** *** 1068,1073 **** --- 1106,1112 ---- engineers--not risk-averse lawyers--should be principally responsible for product design. \end{quotation} + (Congressional Record (Senate), 8 Oct. 1998, p. S11888) \subsection{Inconsistent with other provisions of the DMCA} *************** *** 1154,1161 **** --- the plaintiffs are clearly exceeding the bounds. The plaintiffs' witnesses admit and relish the tying between ! movies and players. <> ! Schumann (?) freely admits. The collective market power of the movie studios in the DVD market is obvious and undisputed. Through contractual arrangement with the DVD-CCA, the studios have formed a trust which seeks to force an unwanted licence on all --- 1193,1220 ---- --- the plaintiffs are clearly exceeding the bounds. The plaintiffs' witnesses admit and relish the tying between ! movies and players, as the numerous quotes about ``authorized'' and ! ``licensed'' players clearly show; the whole purpose of the CSS ! licensing regime is to impose restrictions on the players. As ! Mr. Marks testified at the LOC hearing: ! \begin{quotation} ! 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. ! \end{quotation} ! (LOC hearing transcript, p. 242). ! The collective market power of the movie studios in the DVD market is obvious and undisputed. Through contractual arrangement with the DVD-CCA, the studios have formed a trust which seeks to force an unwanted licence on all From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 1 19:48:27 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA19278 for dvd-discuss-outgoing; Tue, 1 Aug 2000 19:48:27 -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 TAA19275 for ; Tue, 1 Aug 2000 19:48:26 -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 TAA06198 for ; Tue, 1 Aug 2000 19:48:08 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id TAA15347; Tue, 1 Aug 2000 19:48:08 -0400 (EDT) Date: Tue, 1 Aug 2000 19:48:08 -0400 (EDT) Message-Id: <200008012348.TAA15347@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Marks on access vs. use Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu In sourcing the quotes for my authority paper, I ran across this gem from our friend Mr. Marks, which had somehow escaped my attention. >From p. 261 of the Stanford hearing transcript: 8 [Mr. Carson] ... why should it 9 be a violation of the law for an individual who may 10 go to Europe or Asia, or wherever, and pick up a DVD 11 of a motion picture there and bring it home, to 12 circumvent for his or her own personal use, so he or 13 she can view that DVD in his or her own home? Why 14 is that a problem? 15 MR. MARKS: It really goes to the same 16 question you asked about the access control, why 17 it's a problem if they don't have a player. It's 18 because of the fact that the technological 19 protection measure is not only dealing with access, 20 but is also dealing with subsequent uses of the 21 content. Contrast this with Nimmer's analysis of the law, which stresses that use control is disallowed... rst From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 1 19:51:44 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA19427 for dvd-discuss-outgoing; Tue, 1 Aug 2000 19:51:44 -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 TAA19418 for ; Tue, 1 Aug 2000 19:51:42 -0400 Received: from localhost (localhost [[UNIX: localhost]]) by rjmconsulting.com (8.9.3/8.9.3) id RAA06274 for dvd-discuss@eon.law.harvard.edu; Tue, 1 Aug 2000 17:02:47 -0700 From: Russell (James) Miller To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Authority --- some fixups. Date: Tue, 1 Aug 2000 17:00:49 -0700 X-Mailer: KMail [version 1.0.29.2] Content-Type: text/plain References: <200008012344.TAA15338@soggy-fibers.ai.mit.edu> In-Reply-To: <200008012344.TAA15338@soggy-fibers.ai.mit.edu> MIME-Version: 1.0 Message-Id: <00080117024606.28633@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've just gotta say this - it really warms my heart to see quasi-legal briefs with context diffs! That goes right to the heart of it all - trying to put open-source sensibilities to legal research and discussion. --Russell On Tue, 01 Aug 2000, you wrote: > I've put up a revised version of the authority paper; differences > between this and the version reviewed by Eldred are appended below. > It's mostly cleanups this time (especially sourcing the quotes); > however, I did also clean up the "Encryption not required" section. From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 1 21:19:41 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA20672 for dvd-discuss-outgoing; Tue, 1 Aug 2000 21:19:41 -0400 Received: from mail.airbridge.net ([204.147.60.220]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id VAA20669 for ; Tue, 1 Aug 2000 21:19:40 -0400 Received: from agape.murphy.cx ([166.84.198.139]) by mail.airbridge.net (Netscape Messaging Server 3.6) with ESMTP id AAA37 for ; Tue, 1 Aug 2000 21:19:47 -0400 Received: (from murphy@localhost) by agape.murphy.cx (8.9.3/8.8.7) id VAA01227 for dvd-discuss@eon.law.harvard.edu; Tue, 1 Aug 2000 21:19:26 -0400 Date: Tue, 1 Aug 2000 21:19:24 -0400 From: Roy Murphy To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] copyleft subpoenad Message-ID: <20000801211924.A682@agape.murphy.cx> References: <00080110154902.28633@www.rjmconsulting.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0pre3i In-Reply-To: <00080110154902.28633@www.rjmconsulting.com> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Yea, verily on Tue, Aug 01, 2000 at 10:14:42AM -0700, thus spake Russell Miller: > It looks like copyleft has been subpoenad in the DeCSS case for producing the > shirts (of which I own one) with the css_descramble source on it. Check out > slashdot for details. Slashdot is short on details. Subpoenaed just sounds wrong. Are they being required to testify or provide evidence? In connection with what case? Some /. poster said it was actually a summons. That's even less clear. Are individuals at Copyleft being charged under the criminal portions of the DMCA? There are just too many unanswered questions. > I think I'm going to buy another one... Yeah. I already did. -- 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 Aug 1 21:26:46 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA20796 for dvd-discuss-outgoing; Tue, 1 Aug 2000 21:26:46 -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 VAA20793 for ; Tue, 1 Aug 2000 21:26:45 -0400 Received: from naboo (user-2inib0s.dsl.mindspring.com [165.121.44.28]) by swan.prod.itd.earthlink.net (8.9.3-EL_1_3/8.9.3) with ESMTP id SAA06652 for ; Tue, 1 Aug 2000 18:26:26 -0700 (PDT) From: "Jim Taylor" To: Subject: RE: [dvd-discuss] Does DeCSS circumvent? Not if CSS effectively controls access Date: Tue, 1 Aug 2000 18:22:21 -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) In-Reply-To: <20000731183553.C18901@eldritchpress.org> 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 Eric Eldred, on Monday, July 31, 2000 3:36 PM, wrote > >Jim, in your book I think you make a distinction between >decoding and decryption in the CSS process. Is that at >all relevant here, and if so can you explain it further? It's relevant in the sense that CSS is independent of MPEG-2 decoding. It's a separate process, added to the disc for the express purpose of qualifying under the DMCA. (Hollywood was busy at work on the DMCA long before CSS was fleshed out, so they knew what they were aiming at). Of course they also wanted to make CSS reasonably functional so that it would prevent average users from easily making digital copies. An important point is that any arguments about MPEG-2 decoding or encoded content are irrelevant, since CSS encryption is not tied to MPEG-2 decoding. (CSS encryption is also used on sectors with Dolby Digital audio.) The only connection is that the CSS license, referring to computer-based playback, requires that authorized devices protect decrypted but still encoded content. CSS doesn't require protection of the decoded content, since there's no protection for VGA output, etc. They rely on the "firehose protection" principle, that there's too much data to deal with. (Of course re-encoding it on the fly, say using MPEG-4, gets around that.) -- Jim Taylor Author of DVD Demystified and the DVD FAQ From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 1 22:04:08 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA20936 for dvd-discuss-outgoing; Tue, 1 Aug 2000 22:04:08 -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 WAA20933 for ; Tue, 1 Aug 2000 22:04:07 -0400 From: Consilgere@cs.com Received: from Consilgere@cs.com by csimo01.mx.aol.com (mail_out_v27.12.) id x.3f.85a25bb (4229) for ; Tue, 1 Aug 2000 22:03:04 -0400 (EDT) Message-ID: <3f.85a25bb.26b8db57@cs.com> Date: Tue, 1 Aug 2000 22:03:03 EDT Subject: Re: [dvd-discuss] first amendment defense 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 Not a book, a machine would be a better way of looking at it. An executable is the equivalent of a machine. From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 1 22:25:12 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA21047 for dvd-discuss-outgoing; Tue, 1 Aug 2000 22:25:12 -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 WAA21044 for ; Tue, 1 Aug 2000 22:25:11 -0400 Received: from naboo (user-2inib0s.dsl.mindspring.com [165.121.44.28]) by swan.prod.itd.earthlink.net (8.9.3-EL_1_3/8.9.3) with ESMTP id TAA03538 for ; Tue, 1 Aug 2000 19:24:53 -0700 (PDT) From: "Jim Taylor" To: Subject: RE: [dvd-discuss] the definition of 'Circumvention' Date: Tue, 1 Aug 2000 19:20:36 -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: <20000731232747.6603.qmail@web512.mail.yahoo.com> 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 Bryan Taylor, on Monday, July 31, 2000 4:28 PM, wrote >----- Jim Taylor wrote: >> I see nothing in the law that distinguished an act from a device. > >Gee, I thought it was pretty palpable. I'll give a more rigorous proof: It would have been more accurate for me to distinguish between the "act of a person" vs. the "act of a device." However, even that gets mixed up in the definition of circumvention. More below. >Then (a)(2) list several different verb phrases after the "No person >shall" part, such as "offer to the public" and "traffic". The direct >object of these is "technology, product, service, device, component, or >part thereof, that" has meets one of three conditions. Only the listed >actions on the so as-conditioned direct objects are given causes of >action. Grammatical contortions notwithstanding, the excerpt clearly talks about "products" and "devices" that "circumvent". I think that's pretty clear support for my point. >Note for the record that none of the conditions are "is authorized by >the copyright holder". This may be sufficient to prove my claim, but >I'll continue on anyway. Authorization is added in subsection 3. If we take out a lot of legal redundancy and string things together, we get the following: 1201(a)(2) No person shall ... provide ... any ... device ... that ... 1201(a)(2)(A) is primarily ... produced for the purpose of circumventing a technological protection measure... 1201(a)(3)(A) [which] means to ... decrypt an encrypted work, or otherwise ... bypass [or] remove ... a technological protection measure, without the authority of the copyright owner. I'm not trying to be clever and come up with a new meaning, I'm trying to show that a very straightforward reading of section 1201 (a or b) talks about devices that circumvent. It also talks about people that circumvent, but the MPAA is not suing people for circumventing, it's suing people for providing a device that [it claims] circumvents. >Summarizing from above, civil remedies exist to assure that no person >shall traffic a device that has no commercially significant use other >than to do the act of unauthorized descrambling. Hopefully now it's >clear. Yes: a *device* that does the act, not a person that does the act. (As I mentioned, I should have been clearer about this.) >Note that we did not parse the law ban devices having "(use without >authority) to descramble", but rather "use to (descramble without >authority)". The law adopts only later. The former would have given the >MPAA authorization authority over all descramblers, but the later >parsing instead smiles on "unauthorized" devices doing authorized >descrambling. This is only one interpretation. The MPAA clearly claims that they have authority over CSS descrambling. If the courts didn't at least consider this a possibility, then the case would never have made it this far. >They misread the law to ban unauthorized devices that descramble. But >it bans only devices that do only unauthorized descrambling (and bans >them only after this is concluded). The consumer is under no contract >and has received no notice that there is any difference between using >XingDVD and DeCSS. The resulting acts of descrambling are >indistinguishable according to any means recognized by the Copyright >act. But they are distinguishable by a means recognized by the DMCA. One is authorized, one isn't. The act is the same, the authorization is absent. >> Most descramblers require keys to descramble. >> Taking away the key and breaking the descrambler doesn't "prove" that > >> it's not a descrambler. > >Are you saying that if the Xing key was removed from DeCSS that it >would remain a descrambler? No, I'm saying that taking the key away so that it can no longer descramble makes it a broken descrambler, but does not prove that it is not a software device intended to descramble. >Consider a tool that had the title key hard coded in it. This has a >better case for being an access control circumvention tool. Setting >aside the practical difficulties due to network bandwidth, for the >particular movie, people could download the encrypted .vob files and >use the tool to watch them and thereby skip First Sale. > >You are saying that if instead, the above tool had a text box where you >could type in the title key that it would still be illegal. This would >also allow me to get PGP banned by doing nothing other than using it >and filing a copyright. After all, when you give it my key it can >descramble my work. You could not get PGP banned, because it clearly has other uses. However, the act of typing in a key could be considered circumvention. The act has shifted from a device to a person, so the analogy doesn't apply to the original point. >> CSS was put there to protect a work (regardless of how >> well it works). The DeCSS.exe application removes all of the >> CSS protection and copies the files to the hard drive. It doesn't >> matter that it did so in cooperation with the drive, it has >> stripped the work of its TPM. > >By your standard where it doesn't matter if something else provides the >keys, I cannot think of any open source decryption program that is not >easily made actionable by any user. Recipe: > >1) Copyright something >2) Encrypt it with the program >3) Anonymously post the key (saying "use of key not authorized") >4) Sue the distributors of the program Point 3 sinks your argument. No court would back you up if you just spread the keys around. CSS took steps to protect them (they failed, but at least they were taken). Multiple keys were used, secret challenge algorithms were designed, key exchange over a bus was obfuscated, and so on. I do maintain that it doesn't matter if something else provides the keys. It doesn't really matter where the key comes from, as long as the copyright holder has made reasonable efforts to give the key only to parties making authorized devices. This is part of what establishes the authority of a device. As always, the bottom line comes back down to "does DeCSS circumvent?" The Xing player doesn't circumvent, so why would DeCSS? The difference is that the Xing player is designed to play (a legitimate function), while DeCSS.exe is designed to decrypt and copy to a hard drive. If it can be shown that this is also a legitimate function, then DeCSS is ok. But the MPAA of course claims that the latter is not a legitimate function. In that vein... Richard Hartman, on Tuesday, August 01, 2000 11:00 AM, wrote > >In order to determine that circumvention has occured, an >infringement must occur. Otherwise the decryption was >legimitate (i.e. authorized -- perhaps by fair use) access >and not circumvention. That seems reasonable, although I'm not sure the DMCA supports that viewpoint. Its definition of circumvention rests entirely on authority. Therefore if you don't infringe (e.g., you make a fair-use copy), but you don't have authority, you have circumvented. It allows circumvention for fair use, but still seems to imply that it's circumvention. >Ok, an analogy. You have a gate with a guard in front of it. >When someone approaches, the guard says "the geese fly high" >and if the person responds "but the ducks walk south for the >winter", he gets in. > >Circumvention would be: > a) shooting the guard > b) climbing over the fence 100 yards away from the guard > >But if you respond appropriately, it is circumvention regardless, >of how you obtained the response phrase? Applying my conclusions above, if you don't have the authority of the gate owner, then you have circumvented. -- Jim Taylor Author of DVD Demystified and the DVD FAQ From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 1 22:30:14 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA21144 for dvd-discuss-outgoing; Tue, 1 Aug 2000 22:30:14 -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 WAA21141 for ; Tue, 1 Aug 2000 22:30:13 -0400 Received: from naboo (user-2inib0s.dsl.mindspring.com [165.121.44.28]) by swan.prod.itd.earthlink.net (8.9.3-EL_1_3/8.9.3) with ESMTP id TAA18567 for ; Tue, 1 Aug 2000 19:29:55 -0700 (PDT) From: "Jim Taylor" To: Subject: RE: [dvd-discuss] emphasis on the "real" crime Date: Tue, 1 Aug 2000 19:25:38 -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: <0FYM00LV4LLC36@mta5.snfc21.pbi.net> 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 Paul Hsieh, on Tuesday, August 01, 2000 11:45 AM, wrote > >Chris Moseng wrote: >> A few problems. The MPAA has no legal recourse against the company >> (Xing) that made the reverse engineering possible (read: easy). The >> DVDCCA could sue them for breach of contract somehow, but it's not >> necessary if the MPAA can win this case. The MPAA has no direct legal >> interest in CSS because they set up this dummy corporation specifically >> for this purpose. This is why the DVDCCA is using their only legal leg, >> misappropriation of trade secrets, in their case in California. > >Actually my recollection of the licence is that Xing should technically forfeit a $1 >million bond for allowing the secret to be breached through a lack of >implementation safe guards. (Assuming that indeed the safe guards were not >implemented -- encrypting the player keys, disabling common debuggers, etc.) Correct, although it's not $1 million bond. It's a fine that the CSS contract allows the DVD CCA (not the MPAA!) to levy against Xing (or now against Real Networks, which acquired Xing). If every licensed DVD software player maker had to put up a $1 million bond there would be a lot fewer players. ;-) -- Jim Taylor Author of DVD Demystified and the DVD FAQ From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 1 22:37:28 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA21212 for dvd-discuss-outgoing; Tue, 1 Aug 2000 22:37:28 -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 WAA21209 for ; Tue, 1 Aug 2000 22:37:27 -0400 From: Consilgere@cs.com Received: from Consilgere@cs.com by csimo01.mx.aol.com (mail_out_v27.12.) id x.c1.5a63b4f (4229) for ; Tue, 1 Aug 2000 22:36:30 -0400 (EDT) Message-ID: Date: Tue, 1 Aug 2000 22:36:28 EDT Subject: Re: [dvd-discuss] first amendment defense 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 Law Enforcement organizations are the embodiment of the power of the state over it's soveriegn territory. It is sanctioned by the state to enforce the laws created legitimately by the state. That's why its so damn special. And as for "enforce the laws after the crime is committed", right now, we can't. The Internet in its current state isn't condusive to it, and everytime Law Enforcement tries to come up with something like Carnivore to help them keep up, they get blasted in the media, pulled before Congressional committees with moron congressmen who dont know what the hell Carnivore is or how it works. And I dont like trading in rights either. I just want to make sure source and object code get the rights they deserve. And they don't deserve Speech status. Source and object code will survive if it gets the rights awarded any other manufactured, non-speech item. What's wrong with source & object code getting the same rights as TV Sets, or lamps, or cars? As for cops abusing power, would you rather be rid of them? That'd be a fine state of affairs... and as far as the Internet is concerned, it's where we're headed. Response to someone else: If programs are "machines" and "devices" that "do work", how can we give them first amendment privilidges? (pardon spelling) Can you find an example of a machine that's art, and still has a useful function to it? From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 1 22:38:31 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA21287 for dvd-discuss-outgoing; Tue, 1 Aug 2000 22:38:31 -0400 Received: from mail.airbridge.net ([204.147.60.220]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id WAA21284 for ; Tue, 1 Aug 2000 22:38:30 -0400 Received: from agape.murphy.cx ([166.84.198.139]) by mail.airbridge.net (Netscape Messaging Server 3.6) with ESMTP id AAA9D0 for ; Tue, 1 Aug 2000 22:38:37 -0400 Received: (from murphy@localhost) by agape.murphy.cx (8.9.3/8.8.7) id WAA01752 for dvd-discuss@eon.law.harvard.edu; Tue, 1 Aug 2000 22:38:16 -0400 Date: Tue, 1 Aug 2000 22:38:15 -0400 From: Roy Murphy To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] copyleft subpoenad Message-ID: <20000801223815.C682@agape.murphy.cx> References: <00080110154902.28633@www.rjmconsulting.com> <20000801211924.A682@agape.murphy.cx> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0pre3i In-Reply-To: <20000801211924.A682@agape.murphy.cx> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Yea, verily on Tue, Aug 01, 2000 at 09:19:24PM -0400, thus spake Roy Murphy: > Slashdot is short on details. Subpoenaed just sounds wrong. Are they being > required to testify or provide evidence? In connection with what case? I found the answer myself. Copyleft has been named Doe #74 in the California case. http://slashdot.org/comments.pl?sid=00/08/01/129205&threshold=1&commentsort=3&mode=thread&pid=20#402 -- 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 Aug 1 22:47:22 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA21379 for dvd-discuss-outgoing; Tue, 1 Aug 2000 22:47:22 -0400 Received: from mercury.clearway.com (c100.clearway.com [199.103.231.100]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id WAA21376 for ; Tue, 1 Aug 2000 22:47:22 -0400 Received: by c100.clearway.com with Internet Mail Service (5.5.2650.21) id ; Tue, 1 Aug 2000 22:50:59 -0400 Message-ID: From: Leland Ray To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] first amendment defense Date: Tue, 1 Aug 2000 22:50:58 -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: Consilgere@cs.com [mailto:Consilgere@cs.com] >I get the feeling the Engineering community simply doesn't care about law >enforcement on the Internet. All I seem to see about in these issues is >civil liberties, civil liberties, civil liberties. I never hear anything >that actually gives a helping hand to any sort of law enforcement >organization. The case in question does not involve law enforcement in any way. It is a civil case involving a civil matter. Certain corporations are alleging that speech which interferes with their business model is against the law. In the law enforcement case, there are additional protections not found in this case. For one thing, there is a right to an attorney. If it weren't for the kindness of EFF, there would be no defense. There is a right to not incriminate yourself, but such protection does not exist here. There is a heightened standard of proof -- beyond a reasonable doubt. In this case, there is no such standard, just a weak preponderance. Nobody can be sent to jail as a result of this case. However, a guilty verdict might influence future criminal actions. It will certainly send a message to the software community: you can develop any software you want if you can afford the costs of litigation. The question is -- what is more sacred to society, a corporate business model or freedom of speech? Which deserves special protection? From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 1 23:05:13 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA21497 for dvd-discuss-outgoing; Tue, 1 Aug 2000 23:05:13 -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 XAA21494 for ; Tue, 1 Aug 2000 23:05:12 -0400 Message-ID: <20000802030425.26254.qmail@web514.mail.yahoo.com> Received: from [64.81.25.37] by web514.mail.yahoo.com; Tue, 01 Aug 2000 20:04:25 PDT Date: Tue, 1 Aug 2000 20:04:25 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] first amendment defense To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-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: > Not a book, a machine would be a better way of looking at it. An > executable is the equivalent of a machine. Judge Fletcher of the 9th Circuit Appeals Court refuted this arguement in it's opinion in Bernstein: "Second, and more importantly, the government's argument, distilled to its essence, suggests that even one drop of 'direct functionality' overwhelms any constitutional protections that expression might otherwise enjoy. This cannot be so. ... The First Amendment is concerned with expression, and we reject the notion that the admixture of functionality necessarily puts expression beyond the protections of the Constitution." Machines that transmit expression cannot be regulated in ways that target the expression unless the objective advances a compelling state interest and even THEN, the regulation must pass the least restrictive means test. For example a cable TV broadcasting station cannot be prevented from using its equipment to provide adult entertainment to customers during daylight hours, even if the cable station can't fully scramble the adult content. See US v Playboy as discussed here: http://eon.law.harvard.edu/archive/dvd-discuss/msg03069.html __________________________________________________ Do You Yahoo!? Kick off your party with Yahoo! Invites. http://invites.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 1 23:53:47 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA22761 for dvd-discuss-outgoing; Tue, 1 Aug 2000 23:53:47 -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 XAA22758 for ; Tue, 1 Aug 2000 23:53:46 -0400 Received: from localhost (jerwin@localhost) by osf1.gmu.edu (8.8.8/8.8.8) with ESMTP id XAA30273 for ; Tue, 1 Aug 2000 23:53:29 -0400 (EDT) Date: Tue, 1 Aug 2000 23:53:29 -0400 (EDT) From: Jeremy A Erwin To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] first amendment 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 Tue, 1 Aug 2000 Consilgere@cs.com wrote: > Law Enforcement organizations are the embodiment of the power of the state > over it's soveriegn territory. It is sanctioned by the state to enforce the > laws created legitimately by the state. That's why its so damn special. Ah yes, the Weberian definition: The state consists of an entity which upholds a claim to a monopoly over the legitimate use of violence ... > And as for "enforce the laws after the crime is committed", right now, we > can't. The Internet in its current state isn't condusive to it, and > everytime Law Enforcement tries to come up with something like Carnivore to > help them keep up, they get blasted in the media, pulled before Congressional > committees with moron congressmen who dont know what the hell Carnivore is or > how it works. Oh poor FBI. Poor CIA, poor NSA. Are you guys being picked on? Your spooks should be able to operate without government oversight, but it's that damn Constitution that keeps getting in the way! > And I dont like trading in rights either. I just want to make sure source > and object code get the rights they deserve. And they don't deserve Speech > status. Source and object code will survive if it gets the rights awarded > any other manufactured, non-speech item. What's wrong with source & object > code getting the same rights as TV Sets, or lamps, or cars? Objects don't have rights... People have rights. > As for cops abusing power, would you rather be rid of them? That'd be a fine > state of affairs... and as far as the Internet is concerned, it's where we're > headed. > Anarchy in the USA. Gotta love it. > Response to someone else: There is such a thing as usenet citation style. You might try it some time. > If programs are "machines" and "devices" that "do work", how can we give them > first amendment privilidges? (pardon spelling) > If humans are organisms and entities that "do work," how can we give the first amendment privileges? (note correct spelling). Damn those plebians- always asking for more "rights",,, > Can you find an example of a machine that's art, and still has a useful > function to it? Given that searching for previously invented devices and processes is called "searching the prior art," this should be a trivial task. You might also consult an expert in industrial design. Flippantly, Jeremy Erwin From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 2 00:16:51 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA22987 for dvd-discuss-outgoing; Wed, 2 Aug 2000 00:16:51 -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 AAA22984 for ; Wed, 2 Aug 2000 00:16:48 -0400 Message-ID: <20000802041601.699.qmail@web512.mail.yahoo.com> Received: from [64.81.25.37] by web512.mail.yahoo.com; Tue, 01 Aug 2000 21:16:01 PDT Date: Tue, 1 Aug 2000 21:16:01 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] first amendment defense To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-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: > And as for "enforce the laws after the crime is committed", right > now, we can't. The Internet in its current state isn't condusive > to it, and everytime Law Enforcement tries to come up with something > like Carnivore to help them keep up, they get blasted in the > media, pulled before Congressional committees with moron > congressmen who dont know what the hell Carnivore is or > how it works. In fact much of the Congressional outrage with Carnivore is the very thing that you bring up: Congress doesn't know "what the hell Carnivore is or how it works". This is because the FBI thought it was above Congressional oversight in creating Carnivore. This should scare the living bejesus out of anyone except a KGB agent. The Constitution wisely creates divided, separated, limited powers precisely for the reason that the greatest danger to the rights of the people is abuse of power within governement. It saddens me how many Americans don't understand the genius of the design of our government. > And I dont like trading in rights either. I just want to make sure > source and object code get the rights they deserve. And they don't > deserve Speech status. Source and object code will survive if it > gets the rights awarded any other manufactured, non-speech item. > What's wrong with source & object code getting the same rights as > TV Sets, or lamps, or cars? I would prefer to live in a world where geniuses like David Touretzky do not live in fear that their scientific research will be regulated like mere "lamps". By the way, neither machines nor messages have rights, nor are rights "awarded" like a prize. Rights belong to people, in recognition of the dignity of the mind. The first amendment denies Congress any power to restrict the fruits of thought from being shared, because this is a *preexisting* right, inherent in human existance. The question to ask is solely if two people can communicate by exchanging a computer program. The answer is clearly yes, and nay-sayers be damned. __________________________________________________ Do You Yahoo!? Kick off your party with Yahoo! Invites. http://invites.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 2 00:31:09 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA23157 for dvd-discuss-outgoing; Wed, 2 Aug 2000 00:31:09 -0400 Received: from hotmail.com (f284.law9.hotmail.com [64.4.8.159]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id AAA23154 for ; Wed, 2 Aug 2000 00:31:08 -0400 Received: (qmail 98024 invoked by uid 0); 2 Aug 2000 04:30:35 -0000 Message-ID: <20000802043035.98023.qmail@hotmail.com> Received: from 38.30.235.56 by www.hotmail.com with HTTP; Tue, 01 Aug 2000 21:30:34 PDT X-Originating-IP: [38.30.235.56] From: "Harold Eaton" To: dvd-discuss@eon.law.harvard.edu Subject: RE: [dvd-discuss] the definition of 'Circumvention' Date: Wed, 02 Aug 2000 00:30:34 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: >Grammatical contortions notwithstanding, the excerpt clearly talks about >"products" and "devices" that "circumvent". I think that's pretty clear >support for my point. > > >Note for the record that none of the conditions are "is authorized by > >the copyright holder". This may be sufficient to prove my claim, but > >I'll continue on anyway. > >Authorization is added in subsection 3. If we take out a lot of legal >redundancy and string things together, we get the following: > >1201(a)(2) >No person shall ... provide ... any ... device ... that ... >1201(a)(2)(A) >is primarily ... produced for the purpose of circumventing a technological >protection measure... >1201(a)(3)(A) >[which] means to ... decrypt an encrypted work, or otherwise ... bypass >[or] >remove ... a technological protection measure, without the authority of the >copyright owner. > >I'm not trying to be clever and come up with a new meaning, I'm trying to >show that a very straightforward reading of section 1201 (a or b) talks >about devices that circumvent. It also talks about people that circumvent, >but the MPAA is not suing people for circumventing, it's suing people for >providing a device that [it claims] circumvents. Lets re-write 1201 (a)(1)(A) the same way: (A) No person shall circumvent a technological measure 1201(a)(3)(A) [which] means to ... decrypt an encrypted work, ... without the authority of the copyright owner. Hmmm, now 1201 (a) (3) (A) has a new meaning - persons are authorized or not authorized. This is an odd state of affairs - none of the words in 1201 (a) (3) (A) have changed, but the meaning seems to have changed. In particular, a definition has changed, but how can this be? In point of fact this is an even more proper substitution than yours since the exact words in 1201 (a) (1) (A) match those of 1201 (a) (3) (A), while they are a tad different int 1201 (a) (2) (A). Perhaps one resolution to this changing definition problem could be that 1201 (a) (3) (A) does not apply to ''purpose of circumventing'' found in 1201 (a) (2) (A). More likely it is resolved by realizing that devices do not act. With your reading, a person charged under 1201 (a) (1) (A) need only claim that she didn't do the decryption, the device did. Since 1201 (a) (2) (A) clearly describes (according to you) devices which perform such acts, this a legitimate defense since 1201 (a) (1) (A) forbids only persons and not devices from performing such acts. As a practical matter, persons will never decrypt an encrypted work, they will always leave that to devices. By your reading, only those poor souls who do all that cryptographic work in their heads (quite challenging really) could be in violation of 1201 (a) (1) (A) (when it goes into effect). All of this nonsense goes away if you simply come to terms with the fact that all acts by devices are really acts by people. he. ________________________________________________________________________ Get Your Private, Free E-mail from MSN Hotmail at http://www.hotmail.com From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 2 00:39:37 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA23262 for dvd-discuss-outgoing; Wed, 2 Aug 2000 00:39:37 -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 AAA23258 for ; Wed, 2 Aug 2000 00:39:36 -0400 Received: from ip213.bedford2.ma.pub-ip.psi.net ([38.32.10.213]) by relay21.smtp.psi.net with smtp (Exim 3.13 #3) id 13JqJK-0001J0-00 for dvd-discuss@eon.law.harvard.edu; Wed, 02 Aug 2000 00:39:19 -0400 From: Ron Gustavson To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] first amendment defense Date: Wed, 02 Aug 2000 00:33:05 -0400 Message-ID: References: <3f.85a25bb.26b8db57@cs.com> In-Reply-To: <3f.85a25bb.26b8db57@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 AAA23259 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, 1 Aug 2000 22:03:03 EDT, Consilgere@cs.com wrote: >Not a book, a machine would be a better way of looking at it. An executable >is the equivalent of a machine. Is a TV program the equivalent of a TV? Are passengers the equivalent of a bus? I see the machine as a vehicle for the executable. If you want to start banning devices, you could ban the general purpose PC. (watch out--that might one day be in the cards.) __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 2 00:39:39 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA23269 for dvd-discuss-outgoing; Wed, 2 Aug 2000 00:39:39 -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 AAA23266 for ; Wed, 2 Aug 2000 00:39:38 -0400 Received: from ip213.bedford2.ma.pub-ip.psi.net ([38.32.10.213]) by relay21.smtp.psi.net with smtp (Exim 3.13 #3) id 13JqJM-0001J0-00 for dvd-discuss@eon.law.harvard.edu; Wed, 02 Aug 2000 00:39:20 -0400 From: Ron Gustavson To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] first amendment defense Date: Wed, 02 Aug 2000 00:33:07 -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 AAA23267 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, 1 Aug 2000 22:36:28 EDT, Consilgere@cs.com wrote: >And I dont like trading in rights either. I just want to make sure source >and object code get the rights they deserve. And they don't deserve Speech >status. Source and object code will survive if it gets the rights awarded >any other manufactured, non-speech item. What's wrong with source & object >code getting the same rights as TV Sets, or lamps, or cars? Obviously you aren't writing any code--or at least any code that you care about. BTW, try telling GM they don't have the right to make a blue-green Oldsmobile. >As for cops abusing power, would you rather be rid of them? That'd be a fine >state of affairs... and as far as the Internet is concerned, it's where we're >headed. No, we'd have them act according to previous wiretap law and practice. >Can you find an example of a machine that's art, and still has a useful >function to it? MOMA in New York has a section devoted to this. __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 2 00:39:35 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA23253 for dvd-discuss-outgoing; Wed, 2 Aug 2000 00:39:35 -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 AAA23250 for ; Wed, 2 Aug 2000 00:39:35 -0400 Received: from ip213.bedford2.ma.pub-ip.psi.net ([38.32.10.213]) by relay21.smtp.psi.net with smtp (Exim 3.13 #3) id 13JqJJ-0001J0-00 for dvd-discuss@eon.law.harvard.edu; Wed, 02 Aug 2000 00:39:17 -0400 From: Ron Gustavson To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] the definition of 'Circumvention' Date: Wed, 02 Aug 2000 00:33:03 -0400 Message-ID: References: <20000731232747.6603.qmail@web512.mail.yahoo.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 AAA23251 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, 1 Aug 2000 19:20:36 -0700, "Jim Taylor" wrote: >As always, the bottom line comes back down to "does DeCSS circumvent?" The >Xing player doesn't circumvent, so why would DeCSS? The difference is that >the Xing player is designed to play (a legitimate function), while DeCSS.exe >is designed to decrypt and copy to a hard drive. If it can be shown that >this is also a legitimate function, then DeCSS is ok. But the MPAA of course >claims that the latter is not a legitimate function. And, of course, our big problem is that they lump css-cat and css-auth in with the EXE. __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 2 01:06:08 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id BAA23540 for dvd-discuss-outgoing; Wed, 2 Aug 2000 01:06:08 -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 BAA23537 for ; Wed, 2 Aug 2000 01:06:06 -0400 Received: from naboo (user-2inib0s.dsl.mindspring.com [165.121.44.28]) by swan.prod.itd.earthlink.net (8.9.3-EL_1_3/8.9.3) with ESMTP id WAA04083 for ; Tue, 1 Aug 2000 22:05:48 -0700 (PDT) From: "Jim Taylor" To: Subject: RE: [dvd-discuss] the definition of 'Circumvention' Date: Tue, 1 Aug 2000 22:01:02 -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: <20000802043035.98023.qmail@hotmail.com> 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 Harold Eaton, on Tuesday, August 01, 2000 9:31 PM, wrote >Hmmm, now 1201 (a) (3) (A) has a new meaning - persons are authorized or not >authorized. This is an odd state of affairs - none of the words in 1201 (a) >(3) (A) have changed, but the meaning seems to have changed. Nothing changed. You just quoted an entirely different section. I was not quoting from 1201(a)(1). I was quoting from 1201(a)(2). The former has always referred to people. The latter, as I keep trying to point out, refers to devices. DeCSS is a device that, according the MPAA, is involved in the act of circumvention. They are not accusing Goldstein of circumvention; they are accusing him of providing a device. >More likely it is resolved by >realizing that devices do not act. Things act. From Encarta World English Dictionary: 6) [intransitive verb] have an effect: to create, produce, or bring about an effect or result {Once the medicine acts, you'll feel better.} >With your reading, a person charged under 1201 (a) (1) (A) need only claim >that she didn't do the decryption, the device did. No, the sections are independent. A person could be charged under (a)(1) for the act of circumvention. That's clearly the act of a person. They could not use (a)(2) "trafficking in a device" as a defense, since it is a separate offense. I have been talking about the section of DMCA that refers to devices [(a)(2)] not the section that refers to people [(a)(1)] (since it's not even in effect yet). I mistakenly assumed that we all understood this as the context for this argument, and I apologize for the confusion. >All of this nonsense goes away if you simply come to terms with the fact >that all acts by devices are really acts by people. Sorry, I can't come to terms with a fallacy. Devices do things. If car alarm goes off on a windy night, is that an act of a person? CSS authorizes devices, not people. That's the point. -- Jim Taylor Author of DVD Demystified and the DVD FAQ From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 2 01:33:48 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id BAA25507 for dvd-discuss-outgoing; Wed, 2 Aug 2000 01:33:48 -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 BAA25474 for ; Wed, 2 Aug 2000 01:33:47 -0400 Message-ID: <20000802053300.21809.qmail@web510.mail.yahoo.com> Received: from [64.81.25.37] by web510.mail.yahoo.com; Tue, 01 Aug 2000 22:33:00 PDT Date: Tue, 1 Aug 2000 22:33:00 -0700 (PDT) From: Bryan Taylor Subject: RE: [dvd-discuss] the definition of 'Circumvention' To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-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 wrote: > It would have been more accurate for me to distinguish between the > "act of a person" vs. the "act of a device." However, even that gets > mixed up in the definition of circumvention. More below. Well, first off, I'm not sure it does speak of the act of a device, but rather a device whose "purpose or use" is to descramble. But my point was not really this so much as the thing-which-is-authorizable is the descrambling (verb), not the device (noun). In short "without the authority of the copyright holder" is an adverbial phrase, not an adjective phrase. No where does the statue recognize any ability of the copyright holder to project a device into any legally significant authorized-device state vs the unauthorized-device state. > Grammatical contortions notwithstanding, the excerpt clearly talks > about "products" and "devices" that "circumvent". I think that's > pretty clear support for my point. I just don't see this. I see devices with "purpose or use" to circumvent. > I'm not trying to be clever and come up with a new meaning, I'm > trying to show that a very straightforward reading of section > 1201 (a or b) talks about devices that circumvent. It also talks > about people that circumvent, but the MPAA is not suing people > for circumventing, it's suing people for providing a device that > [it claims] circumvents. Can I get your view on what words are modified by "without the authority of the copyright holder" in 1201(a)(3)(A)? > >Summarizing from above, civil remedies exist to assure that no > >person shall traffic a device that has no commercially > >significant use other than to do the act of unauthorized > >descrambling. Hopefully now it's clear. > > Yes: a *device* that does the act, not a person that does the act. > (As I mentioned, I should have been clearer about this.) No, a device with a "use". > >Note that we did not parse the law ban devices having "(use without > >authority) to descramble", but rather "use to (descramble without > >authority)". The law adopts only later. The former would have given > >the MPAA authorization authority over all descramblers, but the later > >parsing instead smiles on "unauthorized" devices doing authorized > >descrambling. > > This is only one interpretation. The MPAA clearly claims that they > have authority over CSS descrambling. If the courts didn't at least > consider this a possibility, then the case would never have made > it this far. It is the only defendable interpretation that I see. The MPAA asserts a different one because it sounds good to them, not because it is grounded in the law. I don't know that this issue has been framed yet for any Court. > But they are distinguishable by a means recognized by the DMCA. One > is authorized, one isn't. The act is the same, the authorization is > absent. If what you say is true, then I should expect to find some evidence that distinguishes which one is 'authorized' from the one that isn't. Further this evidence should have been in existence at the time of each act. Can you identify this evidence? > No, I'm saying that taking the key away so that it can no longer > descramble makes it a broken descrambler, but does not prove that it > is not a software device intended to descramble. Proving a negative is thankfully not the requirement used in courtrooms. Can you provide an example of a non-trivial program that you can prove is not a software device intended to descramble. Where would you start? Watch out for buffer overflows in your proof. > You could not get PGP banned, because it clearly has other uses. Not that I, as the copyright holder harmed by it, have authorized. Actually - this just shows how silly it is to think that any old copyright holder has authorization authority over the device. There may in fact be more than one copyright holder. What happens if they disagree? > However, the act of typing in a key could be considered > circumvention. The act has shifted from a device to a person, so the > analogy doesn't apply to the original point. How would you reconsile your statement here with your above "broken descrambler, intended to descramble"? > >1) Copyright something > >2) Encrypt it with the program > >3) Anonymously post the key (saying "use of key not authorized") > >4) Sue the distributors of the program > > Point 3 sinks your argument. No court would back you up if you just > spread the keys around. Gosh I hope your right, since that's essentially what Xing did in this case. If you are right then there is some minimum standard of care required to preserve your right to control access. Of course, the word "anonymously" defeats your rebutal. How would the court distinguish you from an anonymous cracker? > As always, the bottom line comes back down to "does DeCSS > circumvent?" The Xing player doesn't circumvent, so why would > DeCSS? The difference is that the Xing player is designed to play (a > legitimate function), while DeCSS.exe is designed to decrypt and copy > to a hard drive. If it can be shown that this is also a > legitimate function, then DeCSS is ok. But the MPAA of > course claims that the latter is not a legitimate function. The Xing player decrypts and thereby creates a copy in memory. This has no legal difference from persistant storage. (Copies in memory are copies). If Xing put it's copy on the harddrive it would violate the DVD-CCA contract, but MoRE is not a party to any contract. The legitimate function is what Johansen testified it is: to enable interoperability between the windows UDF filesystem driver and any mpeg2 player running under Linux (such as xmovie). The interoperability in this case is the fair use (and thereby 'noninfringing') exchange of the movie data per (f)(4). This would be 'space shifting' fair use exactly as in RIAA v. Diamond Multimedia. __________________________________________________ Do You Yahoo!? Kick off your party with Yahoo! Invites. http://invites.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 2 01:46:55 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id BAA26060 for dvd-discuss-outgoing; Wed, 2 Aug 2000 01:46:55 -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 BAA26055 for ; Wed, 2 Aug 2000 01:46:54 -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 AAA05961 for ; Wed, 2 Aug 2000 00:46:18 -0500 Message-ID: <3987B459.B6F0AFE@mninter.net> Date: Wed, 02 Aug 2000 00:40:41 -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 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 Jim Taylor wrote: > As always, the bottom line comes back down to "does DeCSS > circumvent?" The Xing player doesn't circumvent, so why would DeCSS? > The difference is that the Xing player is designed to play (a > legitimate function), while DeCSS.exe is designed to decrypt and copy > to a hard drive. If it can be shown that this is also a legitimate > function, then DeCSS is ok. But the MPAA of course claims that the > latter is not a legitimate function. Control over what happens to the data after CSS determines authority is not granted by copyright or 1201. Legitimate function is an obfuscation of the plaintiffs. Reverse engineered mplementations outside of DVDCCA licensing restrictions must be permissible. If they are not, you've got perpetual patents, copyright misuse, etc, etc, etc. CSS is the TPM. CSS determines authority at its application. All CSS implementations will determine authority in the same way, by applying the disk key present on legitimate DVDs and permitting decryption. What happens after that is immaterial. If the implementation of CSS is not the be-all and end-all determination of authority to access, then it is a pointless exercise. Might as well just tell publishers everywhere they can sue anyone and everyone who has access their work that they feel like, because CSS isn't an access control measure, it's just vestigial programming that buys a big, federal 1201 lawsuit hammer. I repeat: if properly implemented CSS, alone, doesn't determine and grant authority, it's not a 1201 access control measure. > In that vein... > Richard Hartman, on Tuesday, August 01, 2000 11:00 AM, wrote > > > >In order to determine that circumvention has occured, an > >infringement must occur. Otherwise the decryption was > >legimitate (i.e. authorized -- perhaps by fair use) access > >and not circumvention. > > That seems reasonable, although I'm not sure the DMCA supports that > viewpoint. Its definition of circumvention rests entirely on > authority. Therefore if you don't infringe (e.g., you make a fair-use > copy), but you don't have authority, you have circumvented. It allows > circumvention for fair use, but still seems to imply that it's > circumvention. > > >Ok, an analogy. You have a gate with a guard in front of it. > >When someone approaches, the guard says "the geese fly high" > >and if the person responds "but the ducks walk south for the > >winter", he gets in. > > > >Circumvention would be: > > a) shooting the guard > > b) climbing over the fence 100 yards away from the guard > > > >But if you respond appropriately, it is circumvention regardless, > >of how you obtained the response phrase? > > Applying my conclusions above, if you don't have the authority of the > gate owner, then you have circumvented. Either CSS is an access control measure and it determines authority at its application, and implementations are permissible; or CSS is not an access control measure because the studios wish to determine authority independent of its operation, and 1201 doesn't protect it. -- moseng@mninter.net I use PGP 6.5.3 -- http://www.underwhelm.org/pgp From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 2 01:52:21 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id BAA26193 for dvd-discuss-outgoing; Wed, 2 Aug 2000 01:52:21 -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 BAA26190 for ; Wed, 2 Aug 2000 01:52:20 -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 AAA06202 for ; Wed, 2 Aug 2000 00:51:30 -0500 Message-ID: <3987B58E.ED0B242F@mninter.net> Date: Wed, 02 Aug 2000 00:45:50 -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] Authority --- some fixups. References: <200008012344.TAA15338@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 put up a revised version of the authority paper; differences > between this and the version reviewed by Eldred are appended below. > It's mostly cleanups this time (especially sourcing the quotes); > however, I did also clean up the "Encryption not required" section. Could you provide a quick tutorial on how to easily read diffs? I don't program for open source projects (or really much at all), so I'm having a tough time of it. Thanks. -- moseng@mninter.net I use PGP 6.5.3 -- http://www.underwhelm.org/pgp From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 2 01:58:55 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id BAA26258 for dvd-discuss-outgoing; Wed, 2 Aug 2000 01:58:55 -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 BAA26254 for ; Wed, 2 Aug 2000 01:58:54 -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 AAA06548 for ; Wed, 2 Aug 2000 00:58:19 -0500 Message-ID: <3987B726.FDB94A6F@mninter.net> Date: Wed, 02 Aug 2000 00:52:38 -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] emphasis on the "real" crime References: <5A8391CA2D9ED311AFAA080009D982B10B1D89@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: > Ok, an analogy. You have a gate with a guard in front of it. > When someone approaches, the guard says "the geese fly high" > and if the person responds "but the ducks walk south for the > winter", he gets in. > > Circumvention would be: > a) shooting the guard > b) climbing over the fence 100 yards away from the guard > > But if you respond appropriately, it is circumvention regardless, > of how you obtained the response phrase? This may be my own failing, but are you referring to the player key that DeCSS borrows from Xing? Because it is not protected by anything, and borrowing it doesn't make it any less compliant; ie. it still authorizes at 1:1 correlation to a licensed implementation. You can just do more once you get in. It would be, in your example, like building a second gate outfitted with a second guard that's less antagonistic than the first. He doesn't follow you through the park once you're through the gate. Perfectly legal. Let me know if I've missed your point. -- moseng@mninter.net I use PGP 6.5.3 -- http://www.underwhelm.org/pgp From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 2 02:02:17 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id CAA26363 for dvd-discuss-outgoing; Wed, 2 Aug 2000 02:02:17 -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 CAA26360 for ; Wed, 2 Aug 2000 02:02:14 -0400 Received: from mit.edu (h0050da62b39d.ne.mediaone.net [24.147.219.153]) by chmls06.mediaone.net (8.8.7/8.8.7) with ESMTP id CAA08506; Wed, 2 Aug 2000 02:01:56 -0400 (EDT) Message-ID: <3987B9A7.169514DD@mit.edu> Date: Wed, 02 Aug 2000 02:03:19 -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] the definition of 'Circumvention' References: <20000802053300.21809.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: > Actually - this just shows how silly it is to think that any old > copyright holder has authorization authority over the device. There may > in fact be more than one copyright holder. What happens if they > disagree? Now I understand. This is how the DMCA overrules antitrust law. All of the copyright owners have to agree so that they can authorize devices. Therefore all motion picture copyright holders are forced to come together and create the DVD CCA so that they can comply with the DMCA. It was just a minor oversight that Congress never mentioned this requirement explicitly. - Ravi Nanavati From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 2 02:41:23 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id CAA26606 for dvd-discuss-outgoing; Wed, 2 Aug 2000 02:41:23 -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 CAA26602 for ; Wed, 2 Aug 2000 02:41:22 -0400 Received: from jy01 (user-2iniimb.dialup.mindspring.com [165.121.74.203]) by tisch.mail.mindspring.net (8.9.3/8.8.5) with SMTP id CAB12477 for ; Wed, 2 Aug 2000 02:41:04 -0400 (EDT) Message-Id: <200008020641.CAB12477@tisch.mail.mindspring.net> X-Sender: jya@pop.pipeline.com X-Mailer: QUALCOMM Windows Eudora Pro Version 4.0 Date: Wed, 02 Aug 2000 02:35:46 -0400 To: dvd-discuss@eon.law.harvard.edu From: John Young Subject: [dvd-discuss] Pavlovich Quash Motion In-Reply-To: <00080110154902.28633@www.rjmconsulting.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 We offer in the CA case, DVD CCA v. 521, Matthew Pavlovich's motion to quash the court's jurisdiction over him: http://216.167.120.50/dvd-v-521-mpq.htm Robin Gross writes: "Since many other 'out of state/country' defendants are being added to the case, others may want to file a similar motion to get out of the case. A hearing on Pavlovich's motion will be heard on August 28th." From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 2 04:17:09 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id EAA27720 for dvd-discuss-outgoing; Wed, 2 Aug 2000 04:17:09 -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 EAA27717 for ; Wed, 2 Aug 2000 04:17:04 -0400 Received: from naboo (user-2inib0s.dsl.mindspring.com [165.121.44.28]) by swan.prod.itd.earthlink.net (8.9.3-EL_1_3/8.9.3) with ESMTP id BAA13419 for ; Wed, 2 Aug 2000 01:16:43 -0700 (PDT) From: "Jim Taylor" To: Subject: RE: [dvd-discuss] Does DeCSS circumvent? Date: Wed, 2 Aug 2000 01:11:21 -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 (9.0.2911.0) In-Reply-To: <200008012327.TAA15264@soggy-fibers.ai.mit.edu> 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 Robert S. Thau, on Tuesday, August 01, 2000 4:28 PM, wrote > >wendy@seltzer.com writes: > > We do still have to fight Jim Taylor's argument, that perhaps 1201 requires > > that implementing devices be authorized by the copyright owner. DeCSS > > isn't identical to licensed players in the MPAA's eyes because it's not > > encased so as to prevent plaintext from leaking out. Whether or not the > > studios can impose a lack of authority on the DVD-purchaser, they want even > > more badly to block developers in the middle from offering tools/devices. > >Which can be done by investigating the consequences of that reading >("authorization of means", as Bryan put it) --- indefinite patent-like >grants, with the attendant horribles --- or by demonstrating clear >conflict with expressed congressional intent. (Both arguments >expressed at length you-know-where). I second this, with an addition. The MPAA (reading 1201(a)(2)) clearly believes that it's the devices that are being authorized. The argument against this is not to define authorization differently (since, as Kaplan demonstrated, you may not get very far), but to point out the flaws in authorizing devices: indefinite grants of exclusivity, conflict with intent of DMCA, and no provision at all for fair use (which might just be a subpoint of the "intent" argument). -- Jim Taylor Author of DVD Demystified and the DVD FAQ From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 2 04:52:42 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id EAA28343 for dvd-discuss-outgoing; Wed, 2 Aug 2000 04:52:42 -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 EAA28340 for ; Wed, 2 Aug 2000 04:52:41 -0400 Received: from naboo (user-2inib0s.dsl.mindspring.com [165.121.44.28]) by swan.prod.itd.earthlink.net (8.9.3-EL_1_3/8.9.3) with ESMTP id BAA14840 for ; Wed, 2 Aug 2000 01:52:23 -0700 (PDT) From: "Jim Taylor" To: Subject: RE: [dvd-discuss] the definition of 'Circumvention' Date: Wed, 2 Aug 2000 01:46:53 -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: <20000802053300.21809.qmail@web510.mail.yahoo.com> 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 Bryan Taylor, on Tuesday, August 01, 2000 10:33 PM, wrote > >--- Jim Taylor wrote: >> Grammatical contortions notwithstanding, the excerpt clearly talks >> about "products" and "devices" that "circumvent". I think that's >> pretty clear support for my point. > >I just don't see this. I see devices with "purpose or use" to >circumvent. Ok. Is there a meaningful distinction? If a device has "purpose or use" to circumvent, then it can circumvent. >Can I get your view on what words are modified by "without the >authority of the copyright holder" in 1201(a)(3)(A)? "Descramble, decrypt, remove, etc." are modified. Authority covers the act of decrypting, as performed by a licensed CSS device. >If what you say is true, then I should expect to find some evidence >that distinguishes which one is 'authorized' from the one that isn't. >Further this evidence should have been in existence at the time of each >act. Can you identify this evidence? If I give you two dollar bills, one legit and one counterfeit, where's the evidence that distinguishes them. How can I tell a counterfeited copy of a DVD from a legit copy (other than the words "Star Wars" being replaced by Chinese characters)? Where's the requirement that authority be in evidence? >From the MPAA's point of view, authorized devices are those that are openly available, since any other devices will be suppressed by legal action (of course unauthorized devices will still be around, just as with counterfeit bills or discs). >> No, I'm saying that taking the key away so that it can no longer >> descramble makes it a broken descrambler, but does not prove that it >> is not a software device intended to descramble. >Can you provide an example of a non-trivial program that you can prove >is not a software device intended to descramble. Where would you start? >Watch out for buffer overflows in your proof. Sure. How about the BIOS in my PC? No decrypting there that I can think of. Where are we going with this? The original claim that I objected to (if I remember it right) was that taking away the key from CSS proves that it's not a TPM. >> You could not get PGP banned, because it clearly has other uses. >Not that I, as the copyright holder harmed by it, have authorized. Exactly. It doesn't matter what you authorize, since PGP does other things. You, as copyright holder, blew it. You picked a crummy TPM. It doesn't matter what you authorize, because PGP does not uphold your authorization (at least not in this example, where you let the key out). Your TPM is circumventable, but you get no support from the DMCA. >Actually - this just shows how silly it is to think that any old >copyright holder has authorization authority over the device. There may >in fact be more than one copyright holder. What happens if they >disagree? Disagree with what? The design of CSS? If so, then they should use a different TPM. CSS proxies their authority in a specific way. If they sign the CSS license, then they must agree with that method. Actually, you make good point. A copyright holder might wish to protect content but allow fair use. CSS doesn't do this. This is a problem with CSS. However, if the copyright holder uses CSS, even without agreeing with it, it doesn't change authorization. The copyright holder can't say "I authorize X use in spite of CSS." Or can he? What if the copyright holder prints it on the disc label? Something like "I authorize this disc to be copied for use in all DVD players in one household." He has now authorized circumvention. I wonder if the CSS license covers this? >> However, the act of typing in a key could be considered >> circumvention. The act has shifted from a device to a person, so the >> analogy doesn't apply to the original point. >How would you reconsile your statement here with your above "broken >descrambler, intended to descramble"? They're completely unrelated. Taking a key away broke the descrambler. In the statement above, the key is there. >> >1) Copyright something >> >2) Encrypt it with the program >> >3) Anonymously post the key (saying "use of key not authorized") >> >4) Sue the distributors of the program >> >> Point 3 sinks your argument. No court would back you up if you just >> spread the keys around. > >Gosh I hope your right, since that's essentially what Xing did in this >case. If you are right then there is some minimum standard of care >required to preserve your right to control access. Come on, don't waste time with frivolous stuff like this. Xing did not spread keys around. Rather they didn't adequately protect them. Xing's failure to protect a secret doesn't change the copyright holder's right to control access. The "preservation" of that right can't rest on the actions of other parties. >Of course, the word "anonymously" defeats your rebutal. How would the >court distinguish you from an anonymous cracker? Good point. You still couldn't sue the distributors of the program, since they didn't do anything. You chose the program, your key was "stolen," your problem. You could sue to prevent the key from being spread or used, which would work about as well as suing to prevent DeCSS from being posted or linked to. ;-) >> to a hard drive. If it can be shown that this is also a >> legitimate function, then DeCSS is ok. But the MPAA of >> course claims that the latter is not a legitimate function. > >The Xing player decrypts and thereby creates a copy in memory. This has >no legal difference from persistant storage. (Copies in memory are >copies). No, this is a completely bogus argument. Copies in memory are transient and never a complete copy of the work. There's a difference there that could be easily argued in court. >If Xing put it's copy on the harddrive it would violate the >DVD-CCA contract, but MoRE is not a party to any contract. Yup, so MoRE is not authorized to make an authorized device. >The legitimate function is what Johansen testified it is: to enable >interoperability between the windows UDF filesystem driver and any >mpeg2 player running under Linux (such as xmovie). The interoperability >in this case is the fair use (and thereby 'noninfringing') exchange of >the movie data per (f)(4). This would be 'space shifting' fair use >exactly as in RIAA v. Diamond Multimedia. Absolutely. This is the key point that gets lost in a lot of nit-picking about authority and validity of TPMs and so on. So next we see if the court agrees that this is a legitimate use. If so, we don't even need to get DMCA thrown out. ;-) -- Jim Taylor Author of DVD Demystified and the DVD FAQ From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 2 04:52:38 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id EAA28335 for dvd-discuss-outgoing; Wed, 2 Aug 2000 04:52:38 -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 EAA28332 for ; Wed, 2 Aug 2000 04:52:37 -0400 Received: from naboo (user-2inib0s.dsl.mindspring.com [165.121.44.28]) by swan.prod.itd.earthlink.net (8.9.3-EL_1_3/8.9.3) with ESMTP id BAA14791 for ; Wed, 2 Aug 2000 01:52:19 -0700 (PDT) From: "Jim Taylor" To: Subject: RE: [dvd-discuss] the definition of 'Circumvention' Date: Wed, 2 Aug 2000 01:46:50 -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) In-Reply-To: <3987B459.B6F0AFE@mninter.net> 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 Chris Moseng, on Tuesday, August 01, 2000 10:41 PM, wrote >Control over what happens to the data after CSS determines authority is >not granted by copyright or 1201. Legitimate function is an obfuscation >of the plaintiffs. But what happens to the data afterward determines "purpose or use" (DMCA terminology). You can't evaluate that in a vacuum. >Reverse engineered implementations outside of DVDCCA >licensing restrictions must be permissible. If they are not, you've got >perpetual patents, copyright misuse, etc, etc, etc. I can't play the devil's advocate on this one, since I agree. I'm not sure what the MPAA's counterargument is. >CSS is the TPM. CSS determines authority at its application. All CSS >implementations will determine authority in the same way, by applying >the disk key present on legitimate DVDs and permitting decryption. What >happens after that is immaterial. Does CSS determine authority? (I'm still thinking about this one.) In any case, an unauthorized implementation of CSS is falsely determining authority. Reproducing the functionality of CSS does not convey authority to an implementation. -- Jim Taylor Author of DVD Demystified and the DVD FAQ From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 2 07:33:15 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id HAA30171 for dvd-discuss-outgoing; Wed, 2 Aug 2000 07:33:15 -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 HAA30168 for ; Wed, 2 Aug 2000 07:33:13 -0400 Received: by chiara.elte.hu (Postfix, from userid 17806) id 0102A7E1B5; Wed, 2 Aug 2000 13:32:55 +0200 (CEST) Date: Wed, 2 Aug 2000 13:41:53 +0200 (CEST) From: Ingo Molnar To: dvd-discuss@eon.law.harvard.edu Subject: RE: [dvd-discuss] the definition of 'Circumvention' 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, 2 Aug 2000, Jim Taylor wrote: > In any case, an unauthorized implementation of CSS is falsely > determining authority. Reproducing the functionality of CSS does not > convey authority to an implementation. maybe the following thing helps: every two implementation can be 'transformed' into each other by changing bytes (or source-code characters) in one, so that it becomes the other one. since the MPAA says that DeCSS is unauthorized, and Xing is authorized, they should be able to identify the step in the above string of 'small transformations' that made it unauthorized. to show the spectrum of 'implementational differences': - if i modify the Xing code so that it eg. performs a bit faster (for my own personal purposes, i do not redistribute these changes), does this make the Xing player unauthorized? - if i fix a bug in the Xing player (for my own purposes), does this make the player unauthorized? - if i *reproduce the exactly same bits* that Xing did, but call it the 'Ingo Player' on the boxed set, is this an authorized or unauthorized player? (lets now forget about Xing's copyright to their player, this is a purely hypotetical question.) do we have any answers on the record from the MPAA that shows what they consider to be an authorized player? [those products which license CSS and obey the contract?] Ingo From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 2 07:49:42 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id HAA30798 for dvd-discuss-outgoing; Wed, 2 Aug 2000 07:49:42 -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 HAA30795 for ; Wed, 2 Aug 2000 07:49:42 -0400 Received: from mit.edu (h0050da62b39d.ne.mediaone.net [24.147.219.153]) by chmls06.mediaone.net (8.8.7/8.8.7) with ESMTP id HAA09520; Wed, 2 Aug 2000 07:49:25 -0400 (EDT) Message-ID: <39880B18.85C78C79@mit.edu> Date: Wed, 02 Aug 2000 07:50:48 -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] 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: > > On Wed, 2 Aug 2000, Jim Taylor wrote: > > > In any case, an unauthorized implementation of CSS is falsely > > determining authority. Reproducing the functionality of CSS does not > > convey authority to an implementation. > > maybe the following thing helps: every two implementation can be > 'transformed' into each other by changing bytes (or source-code > characters) in one, so that it becomes the other one. > > since the MPAA says that DeCSS is unauthorized, and Xing is authorized, > they should be able to identify the step in the above string of 'small > transformations' that made it unauthorized. > > to show the spectrum of 'implementational differences': > > - if i modify the Xing code so that it eg. performs a bit faster (for my > own personal purposes, i do not redistribute these changes), does this > make the Xing player unauthorized? > > - if i fix a bug in the Xing player (for my own purposes), does this make > the player unauthorized? > > - if i *reproduce the exactly same bits* that Xing did, but call it the > 'Ingo Player' on the boxed set, is this an authorized or unauthorized > player? (lets now forget about Xing's copyright to their player, this is a > purely hypotetical question.) > > do we have any answers on the record from the MPAA that shows what they > consider to be an authorized player? [those products which license CSS and > obey the contract?] > > Ingo Their answer would be that you have to get an authorized player from an authorized source. If you, Ingo, are not an authorized source then it does not matter what bits are in the player: it is unauthorized. This is the center of their position --- they, the copyright holders, get to determine which players are and are not authorized and their determination does not have to follow any logic other than the legal agreements they have signed. - Ravi Nanavati From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 2 07:57:25 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id HAA31833 for dvd-discuss-outgoing; Wed, 2 Aug 2000 07:57:25 -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 HAA31830 for ; Wed, 2 Aug 2000 07:57:23 -0400 Received: by chiara.elte.hu (Postfix, from userid 17806) id 7B28E7E1B5; Wed, 2 Aug 2000 13:57:06 +0200 (CEST) Date: Wed, 2 Aug 2000 14:06:05 +0200 (CEST) From: Ingo Molnar To: dvd-discuss@eon.law.harvard.edu Subject: RE: [dvd-discuss] the definition of 'Circumvention' 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, 1 Aug 2000, Jim Taylor wrote: > >You are saying that if instead, the above tool had a text box where you > >could type in the title key that it would still be illegal. This would > >also allow me to get PGP banned by doing nothing other than using it > >and filing a copyright. After all, when you give it my key it can > >descramble my work. > > You could not get PGP banned, because it clearly has other uses. [...] no. The decryption part of PGP has a sole purpose: to decrypt an encrypted email. So in this context, PGP's decryption part circumvents. It clearly works for many different copyright holders, but it takes just one copyright holder to complain under the DMCA, and PGP's decryption functionality becomes a circumvention device. PGP itself (the package) has other, encryption and key management functionality as well (just as DeCSS has 'save to disk' and 'display a messages' parts - this is even more visible in the LiViD case), but this does not change the fact that the decryption part's only purpose is to decrypt. DeCSS's CSS parts have one purpose: to decrypt. (obviously) in this lawsuit the MPAA's role is a 'special case', where the copyright holder of content, licenser of CSS and the owner of the DVD technology is one (consenting) organization, the MPAA (and some sattelites like DVDCCA) itself. But IMHO we should point out how the MPAA's interpretation affects cases where there are multiple (dissenting) copyright holders protected by the same technological measure. It takes just one copyright holder to trigger the DMCA and thus affect *all* implementations. This cannot potentially have been Congress' intent, and it also restraints trade. Ingo From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 2 08:05:08 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id IAA32190 for dvd-discuss-outgoing; Wed, 2 Aug 2000 08:05:08 -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 IAA32187 for ; Wed, 2 Aug 2000 08:05:07 -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 IAA26012; Wed, 2 Aug 2000 08:04:50 -0400 (EDT) Message-ID: <39880EB5.F6A22F7A@mit.edu> Date: Wed, 02 Aug 2000 08:06:13 -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] 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 Jim Taylor wrote: > If I give you two dollar bills, one legit and one counterfeit, where's the > evidence that distinguishes them. How can I tell a counterfeited copy of a > DVD from a legit copy (other than the words "Star Wars" being replaced by > Chinese characters)? Where's the requirement that authority be in evidence? > From the MPAA's point of view, authorized devices are those that are openly > available, since any other devices will be suppressed by legal action (of > course unauthorized devices will still be around, just as with counterfeit > bills or discs). Money is not a device. Under the MPAA's position, it is easy to obtain unauthorized DVD players. Just modify an authorized one in a way they don't like. What happens when the consumer (or reseller) modifies an authorized DVD player (as they are doing by the score in Europe) to remove "features" like region coding? According to the MPAA's position they have not authorized that CSS implementation, so the player has become unauthorized, and they are already using that lack of authorization to suppress certain players (for instance, some Apex models IIRC). Paperwork in player boxes talks about voiding your warranty if you modify the player, but I didn't see anything about voiding your authority to play DVDs. After October does a consumer who uses such a player in the US violate 1201? If so, how are they supposed to know that? - Ravi Nanavati From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 2 08:09:57 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id IAA32316 for dvd-discuss-outgoing; Wed, 2 Aug 2000 08:09:57 -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 IAA32313 for ; Wed, 2 Aug 2000 08:09:55 -0400 Received: from sites.inka.de (puric.inka.de [212.227.14.17]) by mail.inka.de with esmtp id 13JxL8-0000L2-00; Wed, 2 Aug 2000 14:09:38 +0200 Received: from localhost by sites.inka.de with local id 13JxL9-0001L5-00; Wed, 2 Aug 2000 14:09:39 +0200 Date: Wed, 2 Aug 2000 14:09:39 +0200 From: Sham Gardner To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] the definition of 'Circumvention' Message-ID: <20000802140939.B1184@inka.de> References: <39880EB5.F6A22F7A@mit.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0i In-Reply-To: <39880EB5.F6A22F7A@mit.edu>; from ravi_n@mit.edu on Wed, Aug 02, 2000 at 08:06:13AM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Wed, Aug 02, 2000 at 08:06:13AM -0400, Ravi Nanavati wrote: > Money is not a device. Under the MPAA's position, it is easy to > obtain unauthorized DVD players. Just modify an authorized one > in a way they don't like. Sometimes as easy as pressing a few buttons on the remote. > What happens when the consumer (or reseller) > modifies an authorized DVD player (as they are doing by the score > in Europe) to remove "features" like region coding? According to > the MPAA's position they have not authorized that CSS implementation, > so the player has become unauthorized, and they are already using > that lack of authorization to suppress certain players (for instance, > some Apex models IIRC). The Apex player (under several different names) is still widely available in Europe. Sham -- http://sites.inka.de/risctaker/DeCSS/ "The first speech censored, the first thought forbidden, the first freedom denied, chains us all irrevocably." (Jean-Luc Picard) From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 2 08:11:28 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id IAA32552 for dvd-discuss-outgoing; Wed, 2 Aug 2000 08:11:28 -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 IAA32549 for ; Wed, 2 Aug 2000 08:11:27 -0400 Received: by chiara.elte.hu (Postfix, from userid 17806) id 855CA7E1B5; Wed, 2 Aug 2000 14:11:10 +0200 (CEST) Date: Wed, 2 Aug 2000 14:20:09 +0200 (CEST) From: Ingo Molnar To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] the definition of 'Circumvention' In-Reply-To: <39880B18.85C78C79@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, 2 Aug 2000, Ravi Nanavati wrote: > > - if i *reproduce the exactly same bits* that Xing did, but call it the > > 'Ingo Player' on the boxed set, is this an authorized or unauthorized > > player? (lets now forget about Xing's copyright to their player, this is a > > purely hypotetical question.) > Their answer would be that you have to get an authorized player from > an authorized source. [...] i think i have found logical error. in several places i've seen a reference to 'authorized circumvention'. The term 'authorized circumvention' unfortunately makes no sense at all, because it can never happen. Lets see why, the definition of circumvention (in simplified terms): circumvents == 'decrypts AND NOT authorized'. 'authorized AND circumvents' == authorized AND (decrypt AND NOT authorized) since X AND NOT X is always FALSE: 'authorized AND circumvents' == FALSE it can never happen. If it's authorized then it cannot be circumvention, so 'authorized circumvention' can never happen, according to logic. if i'm incorrect, could someone enlighten me what is ment under 'authorized circumvention'? Ingo From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 2 08:46:31 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id IAA01788 for dvd-discuss-outgoing; Wed, 2 Aug 2000 08:46:31 -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 IAA01785 for ; Wed, 2 Aug 2000 08:46:29 -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 IAA13522; Wed, 2 Aug 2000 08:46:12 -0400 (EDT) Message-ID: <39881867.EEA91C3D@mit.edu> Date: Wed, 02 Aug 2000 08:47:35 -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] 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 think i have found logical error. > > in several places i've seen a reference to 'authorized circumvention'. The > term 'authorized circumvention' unfortunately makes no sense at all, > because it can never happen. Lets see why, the definition of circumvention > (in simplified terms): > > circumvents == 'decrypts AND NOT authorized'. > > 'authorized AND circumvents' == authorized AND > (decrypt AND NOT authorized) > > since X AND NOT X is always FALSE: > > 'authorized AND circumvents' == FALSE > > it can never happen. If it's authorized then it cannot be circumvention, > so 'authorized circumvention' can never happen, according to logic. > > if i'm incorrect, could someone enlighten me what is ment under > 'authorized circumvention'? I don't know, but I can make some guesses. If the MPAA talks about 'authorized circumvention' then I have no idea what it means. AFAICT, they would consider it a logical contradiction, as you've said (except maybe in the case of some special deal they invent for libraries or something). If you've seen it here, I think what it means is circumvention for a purpose that should not require the authority of the copyright holder (usually fair use, in one form or another). Our terminology has, at times, been sloppy, which I admit doesn't make the task of understanding the law and the arguments we make about it any easier. OTOH, I've also seen threads here that make the case (from the law, and IIRC what Kaplan says about it) circumvents == 'decrypts' In which case, 'authorized circumvention' is what could more simply be called 'implementation'. - Ravi Nanavati From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 2 09:24:36 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA02612 for dvd-discuss-outgoing; Wed, 2 Aug 2000 09:24:36 -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 JAA02609 for ; Wed, 2 Aug 2000 09:24:34 -0400 Received: by chiara.elte.hu (Postfix, from userid 17806) id 5929C7E1B5; Wed, 2 Aug 2000 15:24:17 +0200 (CEST) Date: Wed, 2 Aug 2000 15:33:17 +0200 (CEST) From: Ingo Molnar To: wendy@seltzer.com Cc: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Does DeCSS circumvent? In-Reply-To: <200008012224.SAA17969@eon.law.harvard.edu> Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, 1 Aug 2000 wendy@seltzer.com wrote: > Even better. Chris's analysis of implementation at > makes the > point well. a couple of thoughts, to potentially address Kaplan's perception of DeCSS being a 'tool to copy DVDs and piracy': wether a legitimately reverse-engineered implementation of CSS gives less protection against copyright infringement is out of the scope of the DMCA, as long as the primary purpose is not to enable infringement. DeCSS copies the transformed data to temporary files on the harddisk not for the purpose to infringe or circumvent, but as a practical matter, to enable viewing DVDs under Linux. As we are going to explain this in detail: the only practical means of interoperability (on the same system) between Windows and Linux is the use of temporary files on harddisk. DVD disks can only be read, not written, so DeCSS, in it's simplest form, first had to copy the to-be-viewed stream of data to disk. The technological complexity of 'on the fly DVD players' is much higher than that of DeCSS, this can be seen by comparing the code size of DeCSS.exe, Xing.exe and the LiViD player's size. The most unsophisticated CSS implementation would thus split up the work in several phases, and do the decryption and playing of content in two steps, via two utilities. If DVDs were all read-write, then the first variants of DeCSS could potentially have modified the encrypted VOB files on the DVD itself, without doing any copying. But this is not possible. Because VOB files take gigabytes, the decrypted content can not be kept in memory either. Even if PCs had gigabytes of RAM, it would be impactical to store decrypted content in memory, because after booting Linux the contents of RAM would be destroyed. The only practical means of interoperability between Windows and Linux (on the same system) are temporary files on the harddisk. These temporary files were never transmitted to any other person, and these temporary files were deleted after use. We agree with plaintiffs that a CSS implementation which gives less 'opportunities of infringement' for pirates should be prefered in theory over a CSS implementation that gives more 'opportunities of infringement' to pirates, but this question is clearly out of the scope of the DMCA. It should not be possible to sue Xing under the DMCA for involuntarily enabling DVD ripper programs. Ingo From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 2 09:26:54 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA02697 for dvd-discuss-outgoing; Wed, 2 Aug 2000 09:26:54 -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 JAA02694 for ; Wed, 2 Aug 2000 09:26:53 -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 JAA29270 for ; Wed, 2 Aug 2000 09:26:37 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id JAA17551; Wed, 2 Aug 2000 09:26:35 -0400 (EDT) Date: Wed, 2 Aug 2000 09:26:35 -0400 (EDT) Message-Id: <200008021326.JAA17551@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Authority --- some fixups. In-Reply-To: <3987B58E.ED0B242F@mninter.net> References: <200008012344.TAA15338@soggy-fibers.ai.mit.edu> <3987B58E.ED0B242F@mninter.net> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Chris Moseng writes: > Could you provide a quick tutorial on how to easily read diffs? I don't > program for open source projects (or really much at all), so I'm having > a tough time of it. There are several different styles; I've appended a "unified diff", which is a bit easier to interpret. It consists of sections of lines which changed, delimited by the lines with @'s, which state where in the file(s) those lines occur. Lines beginning with '+' were added to the new version; lines beginning with '-' were removed from the old. Lines beginning with blanks are unchnaged in both files. So, the block below headed by: @@ -75,11 +77,21 @@ starts at line 75 in the old version, extending for 11 lines, and at line 77 in the new version (due to earlier additions), extending for 21 lines (due to additions in the block). (The "context diff" which I previously posted is similar, except that contiguous blocks from the old and new files are listed separately, meaning that unchnaged lines are given twice; lines beginning with '!' in a context diff are different in the two blocks). --- auth.tex.2000.07.31 Tue Aug 1 18:47:05 2000 +++ auth.tex Tue Aug 1 18:54:07 2000 @@ -12,17 +12,17 @@ \section{Introduction} -The plaintiff's case in -Universal et al. v. Corley relies on an interpetation of the -Digital Millenium Copyright Act (DMCA), specifically 17 USC 1201(a), -which we regard as fundamentally flawed. This section of the law -provides protection for ``access control mechanisms'', which as we -shall show, was clearly intended by Congress to mean mechanisms which -perform some sort of affirmative check that a viewer is authorized to -view a particular work. Several such systems have been deployed by -the movie studios to protect their work, including one (codeveloped -with Circuit City, and marketed to consumers under the name ``Divx'') -which actually checked authority to view works distributed on DVD +The plaintiff's case in Universal et al. v. Corley relies on an +interpetation of the Digital Millenium Copyright Act (DMCA), +specifically 17 USC 1201(a), which we regard as fundamentally flawed. +This section of the law provides protection for ``access control +mechanisms'', which as we shall show, was clearly intended by Congress +to mean mechanisms which perform some sort of affirmative check that a +viewer is authorized to view a particular work. Several such systems +have been deployed by the movie studios to protect their work, +including one (codeveloped with Circuit City, and marketed to +consumers under the name ``Divx'') which actually checked the +authority of a particular viewer to view works distributed on DVD disk. However, the ``Content Scrambling System'' supposedly ``hacked'' by @@ -30,23 +30,25 @@ player will view {\em any} CSS formatted DVD without performing any check that the user is authorized to view it. Plaintiffs claim protection for it anyway by misreading the law to state that the -``authority of the copyright owner'' referred to in the statute is -not a grant of authority to view any particular work, but rather -authority to implement the CSS process {\em itself}. Their assertion -is in conflict with the text of the law, with the legislative record -of Congress enacting the law, and with enduring, basic constitutional -principles regarding intellectual property protection. Further, were -their interpretation to stand, it would give them an awesome degree of -power over the deployment of players for their movies and other -protected content, far in excess of what was intended by Congress, and -with very deleterious effects on the public interest. +``authority of the copyright owner'' referred to in the statute is not +a grant of authority to view any particular work, but rather authority +to implement the CSS process {\em itself} --- the authority to govern +not merely the {\em act} of access, but the permissible {\em means} of +access. Their assertion is in conflict with the text of the law, with +the legislative record of Congress enacting the law, and with +enduring, basic constitutional principles regarding intellectual +property protection. Further, were their interpretation to stand, it +would give them an awesome degree of power over the deployment of +players for their movies and other protected content, far in excess of +what was intended by Congress, and with very deleterious effects on +the public interest. \subsection*{Acknowledgments} This paper is the result of discussions on the \texttt{dvd-discuss} mailing list run by the Berkman Center at Harvard University, and has benefitted immensely from the insights of those on the list. All -flaws are, of course, solely the fault of the author. +flaws are, of course, solely the fault of the authors. \section{Technical facts of the case} @@ -75,11 +77,21 @@ (the so-called ``Macrovision'' machinery). However, the plaintiffs and their agents have acknowledged that these mechanisms are technically distinct from CSS {\em per se}, and bound to it only -legally by the requirements of their license [cite]. They have also +legally by the requirements of their license. They have also included among these conditions such matters as region coding, which have nothing to do directly with either access control or copy control, which comprise between them the subject matter of the DMCA. -[NEEDS QUOTE --- Schumann? Marks?] +As the plaintiffs' witness, Robert Schumann stated in his second +declaration: + +\begin{quotation} +23. As I also stated in my recent deposition, CSS and the decryption +of it via DeCSS has nothing to do with protecting so-called regional +coding or any mechanism which prevents consumers from fast-forwarding +through the initial audiovisual information contained on a DVD disc +(which includes copyright infringement warnings. and the like). +\end{quotation} +(Schumann supplemental declaration, June 1, paragraph 23). The defendants in this case are distributing an unlicensed implementation of the CSS technology, called ``DeCSS'', which, like @@ -92,15 +104,24 @@ hardware display drivers can process it, and the conversion of the digital data to analog signals driving an actual display; the analog signals are generally processed further within a display, but those -steps are of no concern to us). As such, it performs a function which -is absolutely necessary to viewing the content on legitimately -purchased DVDs to which CSS obscuration has been applied --- players -which would clearly serve a legitimate function. +steps are of no concern to us). + +As such, DeCSS performs a function which is absolutely necessary to +viewing the content on legitimately purchased DVDs to which CSS +obscuration has been applied --- players which would clearly serve a +legitimate function. In fact, as testimony at the trial has shown, +DeCSS was originally written to serve as a component of such a player +(Johansen testimony, p. 619 of the trial transcript). Contrary to the +claims of the plaintiffs, it does not serve as a piracy tool; it is +clumsy to use for that purpose, and in any case, other tools for that +purpose are available, which do the job more conveniently, by +essentially parasitizing a licensed DVD player. (Trial transcript, +Reider testimony, p. 684). The plaintiffs are suing to enjoin further distribution of DeCSS, claiming that their licensed implementations of the CSS technology provide a form of access control which is being ``circumvented'', or -more simply, bypassed, by the unlicensed DeCSS implementation. +more simply, bypassed, by the unlicensed DeCSS implementation. What makes this a peculiar claim is that there is nothing about any implentation of the CSS technology, either licensed {\em or} @@ -322,10 +343,6 @@ server a particular web page to the viewer --- in the MIT case, to assure that students view only their own records. -[SHOULD PERHAPS use windows fileshares with password protection; -similar scenario, except that the encryption on the concept MAY not -just be incidental, but absent entirely] - Note that while it is common practice to encrypt data protected by the certificate mechanism, simply to protect it from potential prying eyes as it traverses the network, that does not form part of the mechanism, @@ -380,14 +397,15 @@ \end{quotation} Note the peculiar statement that ``Because CSS is an encryption -technology, CSS qualifies as an access control measure''. This is our -first clue that something funny is going on. The statutory definition -of ``effective access control'' --- that an effective access control -measure is one that ``requires the application of information, or a -process or treatment, with authority of the copyright owner, to gain -access to the work'', makes no specfic reference to encryption. -Instead, it requires the measure to have a specific {\em effect}, one -which, in our view, CSS does not have. +technology, CSS qualifies as an access control measure''. This +already indicates that the plaintiffs have adopted a somewhat strained +reading of the statute. The statutory definition of ``effective +access control'' --- that an effective access control measure is one +that ``requires the application of information, or a process or +treatment, with authority of the copyright owner, to gain access to +the work'' --- makes no specfic reference to encryption, and indeed, +as we have seen, it is perfectly possible to have an access control +measure which does not encrypt the work it protects. But rather than relying on Mr. Gold's perhaps hasty and off-the-cuff remarks, let's examine a more elaborate version of this argument, from @@ -421,6 +439,8 @@ 10 PAL player. \end{verbatim} +(Transcript of LOC hearing, Stanford, pp. 248-249). + So purchasers of a DVD are not entitled to view their DVD ``on any machine they can ... make'', but {\em only} on ``a licensed device''. But that is not due to any contractual obligation they personally have @@ -486,7 +506,7 @@ believe the answer is a qualified ``no''. To explain this, let us briefly discuss what encryption is. In -"Privacy on the Line", a book by Whitfield Diffie (coinventor of +``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. @@ -500,6 +520,8 @@ message so that the recipient can read it. \end{quotation} +(Diffie and Landau, ``Privacy on the Line'', MIT Press, 1998, p. 13). + 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 @@ -507,7 +529,7 @@ 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 +security. 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. @@ -583,8 +605,22 @@ \subsection{Encryption not required for access control; any process could be regulated} -All of this analysis has been based on the plaintiffs' assertion that -any ``encryption technology'' is ``effective access control''. +To sum up: the plaintiffs have adopted a reading of the law which +allows them a patent-like control over processes which are required +to gain access to their works --- that is, once again, that the law is +meant to give them control over not just the {\em act} of access, but +the {\em means}. They are suing because DeCSS threatens to allow DVD +purchases to access the works they have purchased via means which they +have not authorized (specifically, DeCSS itself). + +When asserting this control, in court and elsewhere, the plaintiffs +and their representatives are always careful to qualify it, by saying +that this right to authorize means of access extends only to ``access +control processes'', and not other kinds of processes. For instance, +as we have seen, they have been careful to state in court that CSS is +an access control process because it uses cryptography (a debatable +position in and of itself, once the nature of that cryptography is +analyzed, as we have seen). However, no support for this assertion may be found in the statute. Neither the definition of access control nor that of circumvention in @@ -619,40 +655,30 @@ encryption --- and the plaintiffs' reading would have the bizarre effect of denying such systems protection under the law. -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 -an ``effective access control'' that it ``require the application of -information, or a process or a treatment, with the authority of the -copyright owner, to gain access to [a] work.'' - -In short, the plaintiffs claim that as copyright owners, this statute -gives them the right to simply declare certain processes or treatments -which are required to gain access to their work, such as CSS, to be -``effective access controls''. Having done so, they claim the right -to issue licenses for implementations of those processes, which is -fine as far as it goes. But, they also claim that any unlicensed -implementation of those processes, if unauthorized, is circumvention. -They qualify this by stating some restrictions on what constitutes an -``effective access control'', but those restrictions themselves have -no firm grounding in the language of the law itself, and are in any -case, so vague as to be ultimately meaningless. +In short, the notion that the law is restricted to processes which +are somehow cryptographic is fallacious. If the law actually grants +the plaintiffs the authority they claim, then they could exercise that +authority over {\em any} process which is necessary to gain access to +one of their works, such as, for instance, a video compression +algorithm. Thus, they would secure the benefits of a patent on that +process without meeting any of the requirements (originality, +protection for a limited time), a point to which we shall return. \subsection{Authority not granted to the party performing the ``decryption''} -So, the plaintiffs claim that CSS is an effective access control -measure, even though it does not effectively control access (which is -{\em always} granted ``in the ordinary course of its operation''), -because it is ``an encryption process'', a claim which is debatable at -best. On these bases, they claim that the ``decryption'' can only be -performed with their authority, as expressed in the licenses they -grant --- authority which must be expressed in a contract such as the -CSS license; without such a grant of authority, the plaintiffs claim, -``decryption'' is illegal. But, if we grant them these claims, for -the sake of argument, then it is not clear how a home user is ever -authorized to play a DVD. +But first, let us return to the specific case of CSS. To summarize +our analysis thus far: The plaintiffs claim it is an effective access +control measure, even though it does not effectively control access +(which is {\em always} granted ``in the ordinary course of its +operation''), because it is ``an encryption process'', a claim which +is debatable at best. On these bases, they claim that the +``decryption'' can only be performed with their authority, as +expressed in the licenses they grant --- authority which must be +expressed in a contract such as the CSS license; without such a grant +of authority, the plaintiffs claim, ``decryption'' is illegal. But, +if we grant them these claims, for the sake of argument, then it is +not clear how a home user is ever authorized to play a DVD. The usage scenario here is simple: the user puts their DVD into a player produced by a CSS-licensed manufacturer (say, Panasonic), and @@ -679,6 +705,7 @@ 6 authorized player," when you purchase the DVD. 7 MR. MARKS: That's correct. \end{verbatim} +(Stanford LOC hearing transcript, p. 249). The only contract they have is with the player manufacturer, a CSS licensee --- Panasonic, in our example --- not with the user. @@ -694,6 +721,8 @@ be protected by applicable copyright law. This Agreement gives you no rights to such content. \end{quotation} +(Xing player license, declaration of Chris Eddy in the California +trade-secret case, p. 5). How, then, is the plaintiffs' authority granted to the users, if not by contract (which it would have imposed no burden upon them to @@ -795,6 +824,7 @@ 24 That's got nothing to do, as far as I can tell, with 25 what you're talking about. \end{verbatim} +(LOC hearing transcript, p. 245) Here is what Mr. Marks had to say in response: @@ -814,6 +844,7 @@ 18 disks because they were encrypted with CSS. That 19 serves an access control function as well. \end{verbatim} +(LOC hearing transcript, p. 246) So, Mr. Marks suggests two ``access control'' functions for CSS. One of these functions is, in fact, copy control, not access control; @@ -832,6 +863,7 @@ 2 legitimate player, legitimate licensed CSS player. 3 And not be played on non-licensed players. \end{verbatim} +(LOC hearing transcript, pp. 246-247) So, the only ``access control'' function served by CSS is, by Mr. Marks own testimony, regulation of the player market --- @@ -863,6 +895,7 @@ 9 want, there's no restriction on saying it's a one- 10 time play, it's a two-time play. \end{verbatim} +(LOC transcript, pp. 247-248) So, again, Mr. Marks makes plain that CSS has nothing with do with seeing whether a given {\em user} gets to see a movie --- if they have @@ -934,6 +967,7 @@ use the next generation of computers or VCRs or whatever future device will render one or the other of these familiar devices obsolete. \end{quotation} +(Congressional record, 14 May 1998, p. S4890). Which was echoed on the other side of the aisle; here are remarks from Rep. Klug, in the final debate on the Conference Committee bill: @@ -964,6 +998,7 @@ consumer electronics, telecommunications, and computer products used by businesses and consumers everyday, for perfectly legitimate purposes. \end{quotation} +(Congressional Record, 12 Oct. 1998, p. H10621) But, might it change things if a player manufactured without the cooperation of the copyright holders exposed their works to the @@ -1012,6 +1047,7 @@ technologies, fall within the proscriptions of chapter 12 of the copyright law as added by this bill. \end{quotation} +(Congressional record, 14 May 1998, pp. S4890-S4891). In this example, Sen. Ashcroft cites a device which actually bypasses a technical protection measure as {\em not} actionable circumvention @@ -1032,6 +1068,7 @@ consultative process, or without regard to the input of affected parties. \end{quotation} +(Congressional Record (House), 8 Oct. 1998, p. H10065) Note here that copyright owners are specifically denied the right to vet and approve implementations of their access control measures. In @@ -1050,6 +1087,7 @@ lawful product modifications) shall not be deemed a violation of sections 1201(a) or (b). \end{quotation} +(Congressional Record (House), 8 Oct. 1998, p. H10065) This makes plain that the {\em only} protection afforded under 1201 is against products which perform circumvention per se --- for 1201(a), @@ -1068,6 +1106,7 @@ engineers--not risk-averse lawyers--should be principally responsible for product design. \end{quotation} +(Congressional Record (Senate), 8 Oct. 1998, p. S11888) \subsection{Inconsistent with other provisions of the DMCA} @@ -1154,8 +1193,28 @@ --- the plaintiffs are clearly exceeding the bounds. The plaintiffs' witnesses admit and relish the tying between -movies and players. <> -Schumann (?) freely admits. The collective market power of the +movies and players, as the numerous quotes about ``authorized'' and +``licensed'' players clearly show; the whole purpose of the CSS +licensing regime is to impose restrictions on the players. As +Mr. Marks testified at the LOC hearing: +\begin{quotation} + 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. +\end{quotation} +(LOC hearing transcript, p. 242). +The collective market power of the movie studios in the DVD market is obvious and undisputed. Through contractual arrangement with the DVD-CCA, the studios have formed a trust which seeks to force an unwanted licence on all From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 2 09:36:40 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA02827 for dvd-discuss-outgoing; Wed, 2 Aug 2000 09:36:40 -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 JAA02824 for ; Wed, 2 Aug 2000 09:36:38 -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 JAA00307 for ; Wed, 2 Aug 2000 09:36:22 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id JAA17568; Wed, 2 Aug 2000 09:36:21 -0400 (EDT) Date: Wed, 2 Aug 2000 09:36:21 -0400 (EDT) Message-Id: <200008021336.JAA17568@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: RE: [dvd-discuss] Does DeCSS circumvent? In-Reply-To: References: <200008012327.TAA15264@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: > >Which can be done by investigating the consequences of that reading > >("authorization of means", as Bryan put it) --- indefinite patent-like > >grants, with the attendant horribles --- or by demonstrating clear > >conflict with expressed congressional intent. (Both arguments > >expressed at length you-know-where). > > I second this, with an addition. The MPAA (reading 1201(a)(2)) clearly > believes that it's the devices that are being authorized. The argument > against this is not to define authorization differently (since, as Kaplan > demonstrated, you may not get very far), but to point out the flaws in > authorizing devices: indefinite grants of exclusivity, conflict with intent > of DMCA, and no provision at all for fair use (which might just be a > subpoint of the "intent" argument). Well, the points concerning indefinite grants and congressional intent are both in there, along with arguments showing that the control that the MPAA claims could be extended over any process necessary to gain access to their works, to make the scope of the grant they claim clear. At its heart, it really is an argument specifically against the MPAA's position. If you like, you can think about the other interpretation (as I do, actually), as a bit of rhetorical filigree designed to give the judge a way to do something about those problems short of declaring the law facially unconstitutional. (Granted, that's a whole lot of filigree...). rst From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 2 09:46:53 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA02943 for dvd-discuss-outgoing; Wed, 2 Aug 2000 09:46:53 -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 JAA02940 for ; Wed, 2 Aug 2000 09:46:52 -0400 Received: by chiara.elte.hu (Postfix, from userid 17806) id 752677E1B5; Wed, 2 Aug 2000 15:46:34 +0200 (CEST) Date: Wed, 2 Aug 2000 15:55:35 +0200 (CEST) From: Ingo Molnar To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] the definition of 'Circumvention' In-Reply-To: <39881867.EEA91C3D@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, 2 Aug 2000, Ravi Nanavati wrote: > I think what it means is circumvention for a purpose that should not > require the authority of the copyright holder (usually fair use, in > one form or another). [...] indeed, this is it. (i saw it in Plaintiff's 'Reply Memorandum of Law in Opposition to Cross-Motion to Vacate the Preliminary Injunction') So my argumentation is faulty because the first authorization is by the copyright holder, the second one is by the DMCA. Ingo From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 2 09:53:20 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA03077 for dvd-discuss-outgoing; Wed, 2 Aug 2000 09:53:20 -0400 Received: from hotmail.com (f305.law9.hotmail.com [64.4.8.180]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id JAA03074 for ; Wed, 2 Aug 2000 09:53:19 -0400 Received: (qmail 90453 invoked by uid 0); 2 Aug 2000 13:53:06 -0000 Message-ID: <20000802135306.90452.qmail@hotmail.com> Received: from 128.244.34.133 by www.hotmail.com with HTTP; Wed, 02 Aug 2000 06:53:06 PDT X-Originating-IP: [128.244.34.133] From: "Harold Eaton" To: dvd-discuss@eon.law.harvard.edu Subject: RE: [dvd-discuss] the definition of 'Circumvention' Date: Wed, 02 Aug 2000 09:53:06 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: >Harold Eaton, on Tuesday, August 01, 2000 9:31 PM, wrote > > >Hmmm, now 1201 (a) (3) (A) has a new meaning - persons are authorized or >not > >authorized. This is an odd state of affairs - none of the words in 1201 >(a) > >(3) (A) have changed, but the meaning seems to have changed. > >Nothing changed. You just quoted an entirely different section. I was not >quoting from 1201(a)(1). I was quoting from 1201(a)(2). The former has >always referred to people. The latter, as I keep trying to point out, >refers >to devices. DeCSS is a device that, according the MPAA, is involved in the >act of circumvention. They are not accusing Goldstein of circumvention; >they >are accusing him of providing a device. I well know that you and the MPAA etc have been talking about 1201 (a) (2). The problem is that 1201 (a) (3) which you use also applies to 1201 (a) (1). My point is that the definition of a term somehow changes when applied to different parts of the law and that this is not a correct behavior for a definition. I know that you don't want to talk about 1201 (a) (1) because it successfuly illustrate the point that device DON'T act. Now the dictionary sensibly allows devices to act, but it is not concerned with responsibility for acts the way statutes are. Under your theory of device action you could get away with murder since it was the device (gun) which killed the victim, not you. That is crazy. Every device action is a mere proxy for a person's action in the legal system. >Sorry, I can't come to terms with a fallacy. Devices do things. If car >alarm >goes off on a windy night, is that an act of a person? CSS authorizes >devices, not people. That's the point. Firstly, I pointed out in an earlier message that there can also be ''acts of God''. The wind mentioned above was an act of God, not an act of the car alarm. Decrypting a DVD is virtually never an act of God, and we can ignore those cases anyway. Finally, if you're correct that CSS authorizes devices, not people, then when 1201 (a) (1) goes into effect every consumer who uses a legitimately purchased DVD player to play a legitimately purchased DVD will be violating a federal law since persons are not authorized. I'm sorry that it is inconvenient for you to take the law as a whole, but those other pesky sections are there. ________________________________________________________________________ Get Your Private, Free E-mail from MSN Hotmail at http://www.hotmail.com From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 2 10:22:58 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA03926 for dvd-discuss-outgoing; Wed, 2 Aug 2000 10:22:58 -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 KAA03923 for ; Wed, 2 Aug 2000 10:22:55 -0400 Received: by chiara.elte.hu (Postfix, from userid 17806) id D07437E1B5; Wed, 2 Aug 2000 16:22:38 +0200 (CEST) Date: Wed, 2 Aug 2000 16:31:39 +0200 (CEST) From: Ingo Molnar To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] copying impossible with a player key? Message-ID: MIME-Version: 1.0 Content-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 is a comment Judge Kaplan did in the preliminary injunction hearing: 21 [...] CSS effectively 22 controls access to the copyrighted works because, as the 23 defendants conceded at page 3 of their memorandum, one cannot, 24 in the ordinary course, gain access to the copyrighted works 25 on DVDs without applying information or a process inherent in 1 the player key that permits the play back of the DVD. Indeed, 2 it appears also that one cannot copy the copyrighted works 3 protected by CSS even with a player key. this last sentence i believe not true, because one can copy the encrypted VOB files off the DVD, during playback, right? (and the encrypted VOB files contain the copyrighted works.) Ingo From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 2 10:31:24 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA04599 for dvd-discuss-outgoing; Wed, 2 Aug 2000 10:31:24 -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 KAA04596 for ; Wed, 2 Aug 2000 10:31:23 -0400 Received: by chiara.elte.hu (Postfix, from userid 17806) id 3BD2A7E1B5; Wed, 2 Aug 2000 16:31:06 +0200 (CEST) Date: Wed, 2 Aug 2000 16:40:06 +0200 (CEST) From: Ingo Molnar To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] reverse engineering Message-ID: MIME-Version: 1.0 Content-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 is Judge Kaplan's analysis of the DMCA during the PI hearing, why DeCSS (with the record he had at that time) does not qualify for the reverse engineering exception: 2 The defendants argue that they fall within this exception 3 because DeCSS is necessary to achieve inoperability between 4 computers running on the Linux system rather than Windows and 5 DVDs. I reject the argument. First, there isn't any evidence 6 in the record to support the assertion. Second, DeCSS 7 concededly runs under Windows, even assuming it runs under 8 Linux. And, third, as the plaintiffs have pointed out, the 9 legislative history makes abundantly clear that Section 10 1201(f) permits reverse engineering only of computer programs. 11 It does not authorize the circumvention of technological 12 protection that controls access to other works such as movies. all of these points have been addressed extensively during the trial: first) there is first-hand uncontradicted evidence that Johansen re-did the reverse engineering to help producing a Linux player. second) ample evidence that UDF for Linux did not read DVDs at that time. third) only a computer program (the Xing player) was reverse engineered. The technological protection (the DVD disc and player) was not circumvented. are there any devil's advocate arguments against the (apparent) fact that DeCSS clearly qualifies for the reverse-engineering exception? Ingo From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 2 11:37:45 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA05669 for dvd-discuss-outgoing; Wed, 2 Aug 2000 11:37:45 -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 LAA05666 for ; Wed, 2 Aug 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 KAA14094 for ; Wed, 2 Aug 2000 10:36:59 -0500 Message-ID: <39883EA6.23DE478C@mninter.net> Date: Wed, 02 Aug 2000 10:30:46 -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: 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 Jim Taylor wrote: > But what happens to the data afterward determines "purpose or use" > (DMCA terminology). You can't evaluate that in a vacuum. Are you talking about 1201(a2B)? Because I'm arguing DeCSS doesn't circumvent. Functional implementations never circumvent, by definition. If it doesn't circumvent, it must have purpose or use other than to circumvent, or it has no purpose or use at all. Just a stab in the dark, but I would say DeCSS's purpose or use is to provide cross platform availability of the data, and to provide fair use of the decrypted data. > Does CSS determine authority? (I'm still thinking about this one.) Well, I'm willing to concede that, if the studios are. And they should, if they want to use 1201. > In any case, an unauthorized implementation of CSS is falsely > determining authority. Reproducing the functionality of CSS does > not convey authority to an implementation. And I'm saying there is no place in 1201 that talks about authorized implementations. All functional implementations are legal and legitimate so long as they all do the same job of assessing authorization. This is a MUST in 1201 that the studios try to dance around with their licensed, authorized player baloney. They do not have a right under 1201 to judge an authorized player, and this is denied explicitly by caselaw, legislative record, and the RE clause. If the DVDCCA wishes to persue patent claims over CSS implementations, they can go right ahead. I'd like to see it happen. I'd laugh for a month. Short of an actual patent, there is no protection from implementations that use CSS correctly to get access to a disk; and it is the DVDCCA that should be pursuing "unauthorized implementations," which I argue they never would or could do. I encourage you to imagine this in the case of satellite pay per view: I build a box that performs the same authorization functions as my satellite reciever. Hmmm. Do I get to see any more movies than I can with my old box? No. The new box is waiting for the keys just the same way the old box would. What would be the satellite companies recourse against me? Well, it doesn't 1201 circumvent, but it sure might violate a patent or two of theirs. Implementations do not 1201 circumvent. Only in the plaintiffs' collective cocaine-addled head is the converse possible, because the statement is almost redundant in its logical truth. -- moseng@mninter.net I use PGP 6.5.3 -- http://www.underwhelm.org/pgp From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 2 11:39:16 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA05713 for dvd-discuss-outgoing; Wed, 2 Aug 2000 11:39:16 -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 LAA05707 for ; Wed, 2 Aug 2000 11:39:12 -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 KAA14293 for ; Wed, 2 Aug 2000 10:38:37 -0500 Message-ID: <39883F08.329C8FAF@mninter.net> Date: Wed, 02 Aug 2000 10:32:24 -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] 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 Jim Taylor wrote: > Ok. Is there a meaningful distinction? If a device has "purpose or > use" to circumvent, then it can circumvent. Guns don't kill people; people with guns kill people. -- moseng@mninter.net I use PGP 6.5.3 -- http://www.underwhelm.org/pgp From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 2 11:44:52 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA06058 for dvd-discuss-outgoing; Wed, 2 Aug 2000 11:44:52 -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 LAA06055 for ; Wed, 2 Aug 2000 11:44:51 -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 LAA14533 for ; Wed, 2 Aug 2000 11:44:36 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id LAA18130; Wed, 2 Aug 2000 11:44:35 -0400 (EDT) Date: Wed, 2 Aug 2000 11:44:35 -0400 (EDT) Message-Id: <200008021544.LAA18130@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] review of latest "Authority" doc In-Reply-To: <20000801141102.H19931@eldritchpress.org> References: <20000801004215.A19612@eldritchpress.org> <200008011517.LAA13325@soggy-fibers.ai.mit.edu> <20000801141102.H19931@eldritchpress.org> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Eric Eldred writes: > > But "CSS access control" is an oxymoron; how can a phrase without a > > referent be identified with anything? > > well, plaintiffs have successfully confused the access with > the decryption. but are there not separate disc title keys and > player keys, and separate processes for authentication from > decryption? so authentication might be something like access. > and decryption for the later process of descrambling. Well, the CSS specifications include a process they call authentication, but as I understand it, no cryptographer would call it that --- it's been described on the list as a "prove you know the CSS cipher" test, and the standard assumption in all cryptography, for more than a hundred years, is that the adversary knows the cipher as well as you do. Beyond that, it has nothing to do with a particular work; you "CSS-authenticate" with a drive, not a disk. In any case, there's certainly no reason to describe that process as access control. In my interpretation of the law, an "access control" process is one which performs an affirmative test as to whether a particular principal (a viewer) is authorized to view a particular work; CSS "authentication" certainly doesn't do that. (This is also the way the term "access control" is ordinarily used by techies, BTW). > yes, if you are saying that "encryption" is not "access" then > fine. but then "access" needs to be defined better. and if > you are saying that the law does not require encryption, so what? > decryption could still be illegal. See above. > > > In the section, "Authority not granted to the party > > > performing the encryption," we need to state outright that > > > plaintiffs are deliberately obfuscating the terms of > > > "authority"--their authority model, it is plain, has to > > > be that of licensing players. Whereas, if the interpretation > > > of "circumvention" and "authority" is that of keeping > > > people from playing counterfeit discs or copying them, then > > > licensing at first sale cannot work--but neither can this > > > other means of licensing--because one can still play a > > > counterfeit disc on a licensed player, since it contains > > > the right keys. (However, there are effective means of > > > security--it is just that MPAA relied on some technical > > > means they should not have relied on. Then when this > > > was exposed and they learned of it, instead of correcting > > > their security program, they tried to suppress information > > > by suing the magazine 2600.) > > > > Ummm... this is the point of the first sale section, which discusses > > how the plaintiffs could have remedied the problem by supplying a > > shrink-wrap license with the DVDs, but chose not to do so. > > well, there is a slight difference between the range of > first sale and fair use. Well, yes, but that section isn't really about fair use per se. As I've said, that's a difficult argument to make, particularly before a judge like Kaplan who has, IIRC, declared his lack of sympathy with fair use arguments. (I'm no expert on federal procedure, but I believe new legal arguments can be introduced at the appelate stage; fair use might get a more sympathetic hearing then. > No matter, if defense just wants to incorporate parts of this. > I just would like to see the arguments straight and easy to > understand. That seems to be how they want to deal with all this. Hey, I'm doing my best. > > Hard to do without having the license. And they have given licenses > > to players developed for Linux, in any event, which may (we can't > > know) have exceptions. > > Well, there has been plenty of evidence introduced about > Linux and its development. And it seems to me that the > case might just be about LiViD instead of DeCSS. I > would hate to see DeCSS legal but LiViD not, or > vice versa. > > And Ashcroft is very good. I would not object if > you wanted to explain the implications of that, instead > of ending rather abruptly and forcing the reader to > figure it out for herself. Well, the key implication is the one I bring out before the quote, that the defense can't claim that the LiViD player is "illegitimate" just because it exposes their movies to the possibility of copying. Hmmm... rst From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 2 11:50:37 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA06463 for dvd-discuss-outgoing; Wed, 2 Aug 2000 11:50:37 -0400 Received: from tbird.iworld.com ([63.236.72.237]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id LAA06460 for ; Wed, 2 Aug 2000 11:50:35 -0400 Received: (from nobody@localhost) by tbird.iworld.com (8.10.2/8.10.2) id e72FoQO06230; Wed, 2 Aug 2000 11:50:26 -0400 Date: Wed, 2 Aug 2000 11:50:26 -0400 Message-Id: <200008021550.e72FoQO06230@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] first amendment defense Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Consilgere@cs.com wrote: >Law Enforcement organizations are the embodiment of the power of the state >over it's soveriegn territory. Oh please stop... sollipsism. Freedom is not something that comes from the top down. If you can't swallow that (you're talking to someone who had to live in the midst of Communism as a kid) or if you can't tell the difference between this and other systems, please let me know to get off this list. I've got better things to do and better ways to solve some of these issues which you can't seem to observe without the hyperbolic doomsday rhetoric that plays in your head like a broken record. >It is sanctioned by the state to enforce the laws created legitimately by >the state. That's why its so damn special. They're human beings in my eyes. If you can show me a morality gene, I'll still die laughing. >And as for "enforce the laws after the crime is committed", right now, we >can't. What the hell are you talking about? HOw does the Internet make solving a crime difficult? How the hell is Carnivore after the fact? >The Internet in its current state isn't condusive to it, and everytime >Law Enforcement tries to come up with something like Carnivore to >help them keep up, they get blasted in the media, pulled before Congressional >committees with moron congressmen who dont know what the hell Carnivore is or >how it works. Oh dear god. Why the FUCK do YOU assume Carnivore is good? Why the HELL do you take it for GRANTED? You people can't tell the difference between spam and speech, constancy and consitency, the letter of the law and its intent, privacy and secrecy (no they're not the same... you really don't want me to go there!), traffic control and content control. >And I dont like trading in rights either. I just want to make sure source >and object code get the rights they deserve. And they don't deserve Speech >status. Source and object code will survive if it gets the rights awarded >any other manufactured, non-speech item. What's wrong with source & object >code getting the same rights as TV Sets, or lamps, or cars? Source code will not survive. Source is a CRITICAL means to a discussion. If discussion cannot happen, then private citizens with skills like my own cannot conduct business. What the FUCK is a school worth if I can't use my knowledge? You self-righteous _________________________(fill it in yourself) think everything is isolated. You think that it's ok to just shut down something that scares you or is too complicated for you to understand. It's not okay. Have you ever driven a blueprint? Have you ever shot with a blueprint? Have you ever used a blueprint of a flashlight to light up the wine cellar? Look I'm not going to waste my time further with this. Look at Touretzky's testimony yourself. IT'S THERE TO BE READ. What's the fucking point of discussion if people's fears and personality cave in on a topic before they've fully read it. I say something is blue with polka dots and you come around screaming it's blue, everything blue is the same as any other blue thing. >As for cops abusing power, would you rather be rid of them? That'd be a fine >state of affairs... and as far as the Internet is concerned, it's where we're >headed. Again you have no sense of context whatsoever. I said cops do not NEED those powers. I did not say cops are not NEEDED. Please read in complete sentences. The Internet is an electronic network. TCP/IP does not kill people. I don't understand what they would be protecting? You're trying to apply a real life context to a virtual space. That makes no sense. >Response to someone else: > >If programs are "machines" and "devices" that "do work", how can we give them >first amendment privilidges? (pardon spelling) You cannot The binaries are the machine. It just happens that interpreters are useful in some instances. Very limited extents. Source code cannot do work on its own. >Can you find an example of a machine that's art, and still has a useful >function to it? Yes. 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 Wed Aug 2 11:54:09 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA06841 for dvd-discuss-outgoing; Wed, 2 Aug 2000 11:54:09 -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 LAA06813 for ; Wed, 2 Aug 2000 11:54:02 -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 KAA16344 for ; Wed, 2 Aug 2000 10:53:15 -0500 Message-ID: <39884275.E845A78B@mninter.net> Date: Wed, 02 Aug 2000 10:47:01 -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] Implements, not circumvents References: <200008012327.TAA15264@soggy-fibers.ai.mit.edu> <200008021336.JAA17568@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: > At its heart, it really is an argument specifically against the > MPAA's position. If you like, you can think about the other > interpretation (as I do, actually), as a bit of rhetorical filigree > designed to give the judge a way to do something about those problems > short of declaring the law facially unconstitutional. > > (Granted, that's a whole lot of filigree...). I'd argue that it's a whole lot more than filigree. It's an affirmative defense (If I may borrow a legal term I've only seen used a few times). The plaintiffs assert DeCSS is a device that has purpose of circumvention and that Corley trafficks it. Well, we can hardly deny the latter, but if the device can't do the former by definition, we've won a lawsuit. Devices that implement CSS correctly cannot circumvent by definition. They determine the authorization and grant it or deny it. If there is authority that exceeds the bounds of the CSS system, then no CSS implementation accurately determines authority in its use and they're all equally circumvention devices. Perpetual patent, copyright misuse, yadda yadda. -- moseng@mninter.net I use PGP 6.5.3 -- http://www.underwhelm.org/pgp From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 2 12:04:19 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA07964 for dvd-discuss-outgoing; Wed, 2 Aug 2000 12:04:19 -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 MAA07934 for ; Wed, 2 Aug 2000 12:04:16 -0400 Received: from travel-net.com (trj2.travel-net.com [207.176.160.2]) by mail.travel-net.com (8.9.3/8.9.3) with ESMTP id LAA19866 for ; Wed, 2 Aug 2000 11:02:35 -0400 Message-ID: <39884655.2636A4C@travel-net.com> Date: Wed, 02 Aug 2000 12:03:33 -0400 From: Dan Steinberg Organization: Synthesis X-Mailer: Mozilla 4.74 [en] (Win98; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] first amendment defense References: <200008021550.e72FoQO06230@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 ummmmmmmmmmmmmmmmmmm gentlebeings...... Can we take this outside and *kill* this discussion for the purposes of DVD-DISCUSS please? Rares Marian wrote: > > Consilgere@cs.com wrote: > > >Law Enforcement organizations are the embodiment of the power of the state > >over it's soveriegn territory. > > Oh please stop... sollipsism. Freedom is not something that comes from the top down. If you can't swallow that (you're talking to someone who had to live in the midst of Communism as a kid) or if you can't tell the difference between this and other systems, please let me know to get off this list. I've got better things to do and better ways to solve some of these issues which you can't seem to observe without the hyperbolic doomsday rhetoric that plays in your head like a broken record. > > >It is sanctioned by the state to enforce the laws created legitimately by > >the state. That's why its so damn special. > > They're human beings in my eyes. If you can show me a morality gene, I'll still die laughing. > > >And as for "enforce the laws after the crime is committed", right now, we > >can't. > > What the hell are you talking about? HOw does the Internet make solving a crime difficult? How the hell is Carnivore after the fact? > > >The Internet in its current state isn't condusive to it, and everytime > >Law Enforcement tries to come up with something like Carnivore to > >help them keep up, they get blasted in the media, pulled before Congressional > >committees with moron congressmen who dont know what the hell Carnivore is or > >how it works. > > Oh dear god. Why the FUCK do YOU assume Carnivore is good? Why the HELL do you take it for GRANTED? > > You people can't tell the difference between spam and speech, constancy and consitency, the letter of the law and its intent, privacy and secrecy (no they're not the same... you really don't want me to go there!), traffic control and content control. > > >And I dont like trading in rights either. I just want to make sure source > >and object code get the rights they deserve. And they don't deserve Speech > >status. Source and object code will survive if it gets the rights awarded > >any other manufactured, non-speech item. What's wrong with source & object > >code getting the same rights as TV Sets, or lamps, or cars? > > Source code will not survive. Source is a CRITICAL means to a discussion. If discussion cannot happen, then private citizens with skills like my own cannot conduct business. What the FUCK is a school worth if I can't use my knowledge? > > You self-righteous _________________________(fill it in yourself) think everything is isolated. You think that it's ok to just shut down something that scares you or is too complicated for you to understand. It's not okay. > > Have you ever driven a blueprint? Have you ever shot with a blueprint? Have you ever used a blueprint of a flashlight to light up the wine cellar? > > Look I'm not going to waste my time further with this. Look at Touretzky's testimony yourself. IT'S THERE TO BE READ. > > What's the fucking point of discussion if people's fears and personality cave in on a topic before they've fully read it. I say something is blue with polka dots and you come around screaming it's blue, everything blue is the same as any other blue thing. > > >As for cops abusing power, would you rather be rid of them? That'd be a fine > >state of affairs... and as far as the Internet is concerned, it's where we're > >headed. > > Again you have no sense of context whatsoever. I said cops do not NEED those powers. I did not say cops are not NEEDED. Please read in complete sentences. > > The Internet is an electronic network. TCP/IP does not kill people. I don't understand what they would be protecting? > > You're trying to apply a real life context to a virtual space. That makes no sense. > > >Response to someone else: > > > >If programs are "machines" and "devices" that "do work", how can we give them > >first amendment privilidges? (pardon spelling) > > You cannot > The binaries are the machine. It just happens that interpreters are useful in some instances. Very limited extents. > > Source code cannot do work on its own. > > >Can you find an example of a machine that's art, and still has a useful > >function to it? > > Yes. > > 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 -- 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 Aug 2 12:07:18 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA08261 for dvd-discuss-outgoing; Wed, 2 Aug 2000 12:07:18 -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 MAA08258 for ; Wed, 2 Aug 2000 12:07:17 -0400 Received: from oz.sanchez.com (oz [140.140.1.251]) by homer.sanchez.com (8.8.7/8.8.7) with ESMTP id MAA15567 for ; Wed, 2 Aug 2000 12:06:08 -0400 Received: by OZ with Internet Mail Service (5.5.2650.21) id ; Wed, 2 Aug 2000 12:06:55 -0400 Message-ID: <383558CE36E2D311AC790004AC33FF67616D25@OZ> From: Anjul Srivastava To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] first amendment defense Date: Wed, 2 Aug 2000 12:06:48 -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 hmmmm... litmus test of free speech on dvd-discuss :-) -----Original Message----- From: Dan Steinberg [mailto:dstein@travel-net.com] Sent: Wednesday, August 02, 2000 11:04 AM To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] first amendment defense ummmmmmmmmmmmmmmmmmm gentlebeings...... Can we take this outside and *kill* this discussion for the purposes of DVD-DISCUSS please? Rares Marian wrote: > > Consilgere@cs.com wrote: > > >Law Enforcement organizations are the embodiment of the power of the state > >over it's soveriegn territory. > > Oh please stop... sollipsism. Freedom is not something that comes from the top down. If you can't swallow that (you're talking to someone who had to live in the midst of Communism as a kid) or if you can't tell the difference between this and other systems, please let me know to get off this list. I've got better things to do and better ways to solve some of these issues which you can't seem to observe without the hyperbolic doomsday rhetoric that plays in your head like a broken record. > . . . From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 2 14:04:33 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA12540 for dvd-discuss-outgoing; Wed, 2 Aug 2000 14:04:33 -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 OAA12537 for ; Wed, 2 Aug 2000 14:04:31 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id ; Wed, 2 Aug 2000 11:04:35 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1D93@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] the definition of 'Circumvention' Date: Wed, 2 Aug 2000 11:04:28 -0700 MIME-Version: 1.0 X-Mailer: Internet Mail Service (5.5.2650.21) Content-Type: text/plain; charset="iso-8859-1" Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > -----Original Message----- > From: Jim Taylor [mailto:jtfrog@usa.net] ... > > In that vein... > Richard Hartman, on Tuesday, August 01, 2000 11:00 AM, wrote > > > >In order to determine that circumvention has occured, an > >infringement must occur. Otherwise the decryption was > >legimitate (i.e. authorized -- perhaps by fair use) access > >and not circumvention. > > That seems reasonable, although I'm not sure the DMCA supports that > viewpoint. Its definition of circumvention rests entirely on > authority. > Therefore if you don't infringe (e.g., you make a fair-use > copy), but you > don't have authority, you have circumvented. It allows > circumvention for > fair use, but still seems to imply that it's circumvention. > Interesting. I'm not sure I see that, but IANAL. So the DCMA (by your reading) a) specifically allows for fair use, but b) terms access authorized by the fair use clause but not the copyright owner as "circumvention" c) bans all devices that perform "circumvention" This again would be an internal contradiction between 'a' and 'c' that would (to me) make the law unenforcable. (I say "again" because I presented a different internal contradiction on this list recently). This contradiction could be resolved by addressing 'b' and changing the terminology assigned to access authorized by fair 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 Aug 2 14:21:29 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA12811 for dvd-discuss-outgoing; Wed, 2 Aug 2000 14:21:29 -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 OAA12808 for ; Wed, 2 Aug 2000 14:21:22 -0400 Message-ID: <20000802182026.29371.qmail@web513.mail.yahoo.com> Received: from [131.44.121.4] by web513.mail.yahoo.com; Wed, 02 Aug 2000 11:20:26 PDT Date: Wed, 2 Aug 2000 11:20:26 -0700 (PDT) From: Bryan Taylor Subject: RE: [dvd-discuss] the definition of 'Circumvention' To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-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 wrote: > Ok. Is there a meaningful distinction? If a device has "purpose or > use" to circumvent, then it can circumvent. I think that changes the meaning of the sentence. I would agree that in common language this is a reasonable thing to say, but in a legal context you can't change the text of the statute to support one interpretation of it over another. You have to assume that Congress places every word in the sentance for a reason. The reason that "purpose or use" appear in (a)(2) is to create continuity with (a)(1). In (a)(1), the "No person shall circumvent" language implies that the act of circumvention is an act done by people. In context, (a)(2) follows (a)(1), so continuity implies that (a)(2) bans distribution of devices whose "purpose or use" is to do what is banned by (a)(1), namely allow a person to circumvent. At best, the text does not resolve the question. It is certainly a consistent reading to posit that descrambling authority is an attribute of people only and not devices. Ambiguity, if present, demands the more cautions result, as the holding in Sony provides: "The protection given to copyrights is wholly statutory, and 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." > >Can I get your view on what words are modified by "without the > >authority of the copyright holder" in 1201(a)(3)(A)? > > "Descramble, decrypt, remove, etc." are modified. Authority covers > the act of decrypting, as performed by a licensed CSS device. There is a non-sequiter here between the first and second sentences. Could you fill in the missing steps? Authorizing descrambling in terms of devices, when the law requires allowing devices in terms of descrambling authority seems like circular reasoning. > Where's the requirement that authority be in evidence? It's called "burden of proof", and it always starts with the Plaintiffs. > >If Xing put it's copy on the harddrive it would violate the > >DVD-CCA contract, but MoRE is not a party to any contract. > Yup, so MoRE is not authorized to make an authorized device. Similarly you were not authorized by the DVD-CCA to post your message. Fortunately, the principle of due process of law assures that no cause of action exists unless unambiguously embodied in the law. DVD-CCA post facto assertion does not constitute due process of law. There is no legal significance to lacking such authority. > Absolutely. This is the key point that gets lost in a lot of > nit-picking about authority and validity of TPMs and so on. It is not nit-picking to claim that the time honored doctrine of First Sale transfers authority for all things except a few enumerated exceptions. Did Congress create an authorization for people acting to descramble or for both people and devices acting to descramble? It is not nitpicking to pose this question or argue that the answer is the former. Copyright jurisprudence is full of plaintiffs (many of them movie studios) who believed they had been given more than they actually had been given. __________________________________________________ Do You Yahoo!? Kick off your party with Yahoo! Invites. http://invites.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 2 14:27:01 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA12949 for dvd-discuss-outgoing; Wed, 2 Aug 2000 14:27:01 -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 OAA12946 for ; Wed, 2 Aug 2000 14:27:00 -0400 Message-ID: <20000802182609.27472.qmail@web512.mail.yahoo.com> Received: from [131.44.121.4] by web512.mail.yahoo.com; Wed, 02 Aug 2000 11:26:09 PDT Date: Wed, 2 Aug 2000 11:26:09 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] Authority --- some fixups. To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-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: > Which brings up the question of "what next". The point of these > cleanups was at least to try to get it into shape for submission to > the copyright office as a comment on the DMCA (with Bryan's > concurrence, of course). Good idea. If we submit it to the Copyight Offic, it might be a good idea to include an introduction that goes through the questions that we are trying to answer and states our thesis. __________________________________________________ Do You Yahoo!? Kick off your party with Yahoo! Invites. http://invites.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 2 14:27:56 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA13016 for dvd-discuss-outgoing; Wed, 2 Aug 2000 14:27:56 -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 OAA12993 for ; Wed, 2 Aug 2000 14:27:54 -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 OAA05701 for ; Wed, 2 Aug 2000 14:27:39 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id OAA18945; Wed, 2 Aug 2000 14:27:37 -0400 (EDT) Date: Wed, 2 Aug 2000 14:27:37 -0400 (EDT) Message-Id: <200008021827.OAA18945@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: RE: [dvd-discuss] the definition of 'Circumvention' In-Reply-To: <5A8391CA2D9ED311AFAA080009D982B10B1D93@mail2.onetouch.com> References: <5A8391CA2D9ED311AFAA080009D982B10B1D93@mail2.onetouch.com> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Richard Hartman writes: > Interesting. I'm not sure I see that, but IANAL. So the > DCMA (by your reading) > a) specifically allows for fair use, but > b) terms access authorized by the fair use clause but not > the copyright owner as "circumvention" > c) bans all devices that perform "circumvention" > > This again would be an internal contradiction between 'a' and 'c' that > would (to me) make the law unenforcable. (I say "again" because I presented > a different internal contradiction on this list recently). This > contradiction > could be resolved by addressing 'b' and changing the terminology assigned to > access authorized by fair use. Well, one way of resolving the conflict is by remembering Nimmer's analysis of the law, which distinguishes carefully between access controls, which have statutory protection, and use controls, which do not. This hinges on a statement of Bliley's, I believe, in Congressional debate, which analogized circumvention to breaking into a room containing a book; the copyright holder gets to put a lock on the door to the room, but if they decide to let you in, it's up to you how you make use of what you read in the book, fair use copying included. Which is why it's such a shock to see Marks state flatly that they *are* trying to control use --- once again: 8 [Mr. Carson] ... why should it 9 be a violation of the law for an individual who may 10 go to Europe or Asia, or wherever, and pick up a DVD 11 of a motion picture there and bring it home, to 12 circumvent for his or her own personal use, so he or 13 she can view that DVD in his or her own home? Why 14 is that a problem? 15 MR. MARKS: It really goes to the same 16 question you asked about the access control, why 17 it's a problem if they don't have a player. It's 18 because of the fact that the technological 19 protection measure is not only dealing with access, 20 but is also dealing with subsequent uses of the 21 content. (from p.261 of the Stanford hearing transcript). rst From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 2 14:46:08 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA15787 for dvd-discuss-outgoing; Wed, 2 Aug 2000 14:46:08 -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 OAA15784 for ; Wed, 2 Aug 2000 14:46:04 -0400 Message-ID: <20000802184514.18309.qmail@web509.mail.yahoo.com> Received: from [131.44.121.4] by web509.mail.yahoo.com; Wed, 02 Aug 2000 11:45:14 PDT Date: Wed, 2 Aug 2000 11:45:14 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] 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 --- Ingo Molnar wrote: > are there any devil's advocate arguments against the (apparent) fact > that DeCSS clearly qualifies for the reverse-engineering exception? I'll try (just for fun). Maybe there is proof that SOMEBODY qualifies for the RE exception, but it's not Corley. He admits not participating. He isn't even a programmer. Note that 1201(f)(3) requires that the distribution be done "solely for the purpose" of enabling interoperability. 2600 had other purposes - they described DeCSS as allowing you to "copy" a DVD. Nothing has changed the conclusion of law that 1201(f) does not allow the reverse engineering to result in unathorize access to works that are distinct from the computer program that is reverse engineered. __________________________________________________ Do You Yahoo!? Kick off your party with Yahoo! Invites. http://invites.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 2 14:58:48 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA19535 for dvd-discuss-outgoing; Wed, 2 Aug 2000 14:58:48 -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 OAA19532 for ; Wed, 2 Aug 2000 14:58:47 -0400 Received: from localhost (galt@localhost) by inconnu.isu.edu (8.9.3/8.9.3) with ESMTP id MAA11279 for ; Wed, 2 Aug 2000 12:58:31 -0600 Date: Wed, 2 Aug 2000 12:58:31 -0600 (MDT) From: John Galt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] copyleft subpoenad In-Reply-To: <20000801211924.A682@agape.murphy.cx> Message-ID: MIME-Version: 1.0 Content-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 does set up a "slippery slope" arguement: The MPAA has consistently tried to apply the proceedings to non-parties, so it is in the best interests of the public at large that this case get dismissed with prejudice. Both parties had rested when the MPAA amended both the lists of the plaintiffs and defendants. The MPAA tried to get the injunction to apply to non-named defendants first, then they tried to get the injunction to apply to non-defendants, now they try to name parties that cannot defend the injunction, as arguements have already rested (they are also trying to get additional plaintiffs in "for free" under the same logic). I would suggest YAAB (Yet Another Amicus Brief), but too many of them might be counterproductive. Having said that, here's what should go into it: 1) the MPAA has consistently tried to make any ruling by the court out to be broader than the court's words imply A: the numerous "John Does" of the original complaint B: the attempts by the MPAA to issue cease and desist orders to non parties once the Temp injunction was granted C: the "deep linking" issue: an attempt to set nonsensical precedent D: improper use of chat transcripts of Aerosol (earosol?), violating his fifth amendment right against self-incrimination, also not allowing aerosol his day in court to prove his innocence (I cannot see what his defense would be, but any defense is better than none) E: this final insult: adding defenders after the trial has been rested 2) The taxpayer has already paid an undue burden in this case: arrests across international borders (spurious arrests, mind you) the court's time and effort, and the inevitable requests by the MPAA for aid in enforcing the ruling. 3) The undefined nature of the MPAA's targeting for prosecution means that tomorrow ANYONE could be the target of this suit: punisment without rhyme nor reason is cause for psychoses in the normal human, so cannot be allowable in a sane society. 4) So therefore, the MPAA's suit should be thrown out in the interest of the welfare of the general public... On Tue, 1 Aug 2000, Roy Murphy wrote: > Yea, verily on Tue, Aug 01, 2000 at 10:14:42AM -0700, > thus spake Russell Miller: > > It looks like copyleft has been subpoenad in the DeCSS case for producing the > > shirts (of which I own one) with the css_descramble source on it. Check out > > slashdot for details. > > Slashdot is short on details. Subpoenaed just sounds wrong. Are they being > required to testify or provide evidence? In connection with what case? > > Some /. poster said it was actually a summons. That's even less clear. Are > individuals at Copyleft being charged under the criminal portions of the DMCA? > There are just too many unanswered questions. > > > I think I'm going to buy another one... > > Yeah. I already did. > > -- Galt's sci-fi paradox: Stormtroopers versus Redshirts to the death. Who is John Galt? galt@inconnu.isu.edu, that's who! From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 2 15:15:11 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA23277 for dvd-discuss-outgoing; Wed, 2 Aug 2000 15:15:11 -0400 Received: from mail.inka.de (mail@quechua.inka.de [212.227.14.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA23274 for ; Wed, 2 Aug 2000 15:15:09 -0400 Received: from sites.inka.de (puric.inka.de [212.227.14.17]) by mail.inka.de with esmtp id 13K3ye-0004na-00; Wed, 2 Aug 2000 21:14:52 +0200 Received: from localhost by sites.inka.de with local id 13K3yf-0007Em-00; Wed, 2 Aug 2000 21:14:53 +0200 Date: Wed, 2 Aug 2000 21:14:53 +0200 From: Sham Gardner To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] copyleft subpoenad Message-ID: <20000802211453.A14626@inka.de> References: <20000801211924.A682@agape.murphy.cx> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0i In-Reply-To: ; from galt@inconnu.isu.edu on Wed, Aug 02, 2000 at 12:58:31PM -0600 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Wed, Aug 02, 2000 at 12:58:31PM -0600, John Galt wrote: > > This does set up a "slippery slope" arguement: The MPAA has consistently > tried to apply the proceedings to non-parties, According a slashdot posting that appears to be from one of the Copyleft people, this is part of the California case, i.e. it's the DVDCCA, not the MPAA. Sham -- http://sites.inka.de/risctaker/DeCSS/ "The first speech censored, the first thought forbidden, the first freedom denied, chains us all irrevocably." (Jean-Luc Picard) From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 2 15:36:05 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA29488 for dvd-discuss-outgoing; Wed, 2 Aug 2000 15:36:05 -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 PAA29485 for ; Wed, 2 Aug 2000 15:36:04 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id ; Wed, 2 Aug 2000 12:35:49 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1D95@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] first amendment defense Date: Wed, 2 Aug 2000 12:35:42 -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: Consilgere@cs.com [mailto:Consilgere@cs.com] ... > > Response to someone else: > > If programs are "machines" and "devices" that "do work", how > can we give them > first amendment privilidges? (pardon spelling) Perhaps we don't. Is the work being done expressive? Do physical machines get first amendment priviledges? > Can you find an example of a machine that's art, and still > has a useful > function to it? Not off the top of my head. The machines that I can think of that qualify as "art" tend to be nothing but. For example those Rube Goldberg contraptions w/ wire tracks & balls that you find in some airports. They are clearly machines, and they are clearly art ... but they do not serve a useful purpose. I suppose if you ask some people, you might get the answer that a 60's vintage Corvette or Mustang would be both "useful" and "art"... -- -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 Aug 2 15:45:40 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA31856 for dvd-discuss-outgoing; Wed, 2 Aug 2000 15:45:40 -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 PAA31841 for ; Wed, 2 Aug 2000 15:45:39 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id ; Wed, 2 Aug 2000 12:45:40 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1D96@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] first amendment defense Date: Wed, 2 Aug 2000 12:45:36 -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 > -----Original Message----- > From: Ron Gustavson [mailto:rongus@tiac.net] > Sent: Tuesday, August 01, 2000 9:33 PM > To: dvd-discuss@eon.law.harvard.edu > Subject: Re: [dvd-discuss] first amendment defense > > > On Tue, 1 Aug 2000 22:03:03 EDT, Consilgere@cs.com wrote: > > >Not a book, a machine would be a better way of looking at > it. An executable > >is the equivalent of a machine. > > Is a TV program the equivalent of a TV? Are passengers the > equivalent of a bus? > I see the machine as a vehicle for the executable. If you > want to start banning > devices, you could ban the general purpose PC. (watch > out--that might one day > be in the cards.) > Not that I generally agree with Consigliere (although in this instance I might), but I belive that Ron's comment is due to a misunderstanding. I don't think that C. is saying is something similar to what I recently posited. Not that a program is equivilant to the machine that it is running on (as Ron seems to hear), but rather that a program is a device that exists and performs work in a non-physical (i.e. digital) realm. And -- within the context of that realm -- it is the equivilant of a machine rather than a document or piece of artwork. (e.g. MS Word is a "machine" for displaying MS documents). -- -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 Aug 2 15:49:41 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA00589 for dvd-discuss-outgoing; Wed, 2 Aug 2000 15:49:41 -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 PAA00579 for ; Wed, 2 Aug 2000 15:49:39 -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 MAA28918 for ; Wed, 2 Aug 2000 12:49:15 -0700 Received: (from daw@localhost) by blowfish.isaac.cs.berkeley.edu (8.8.7/8.8.7) id MAA03269; Wed, 2 Aug 2000 12:47:01 -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] copying impossible with a player key? Date: 2 Aug 2000 12:46:43 -0700 Organization: A poorly-installed InterNetNews site Lines: 19 Distribution: isaac Message-ID: <8m9tr3$364$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 Ingo Molnar wrote: > here is a comment Judge Kaplan did in the preliminary injunction hearing: > > 21 [...] CSS effectively > 22 controls access to the copyrighted works because, as the > 23 defendants conceded at page 3 of their memorandum, one cannot, > 24 in the ordinary course, gain access to the copyrighted works > 25 on DVDs without applying information or a process inherent in > 1 the player key that permits the play back of the DVD. Indeed, > 2 it appears also that one cannot copy the copyrighted works > 3 protected by CSS even with a player key. > > this last sentence i believe not true, because [...] You are correct. Copying is possible, with or without a player key. (Without a player key, bit-for-bit copying of the encrypted content suffices.) But 1201(a) is about access, not copying (right?), so I'm not sure why this is relevant to the case. From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 2 15:52:34 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA01173 for dvd-discuss-outgoing; Wed, 2 Aug 2000 15:52:34 -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 PAA01169 for ; Wed, 2 Aug 2000 15:52:33 -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 OAA27094 for ; Wed, 2 Aug 2000 14:52:18 -0500 (CDT) Message-ID: <39887BB7.DB2DE5AE@uic.edu> Date: Wed, 02 Aug 2000 14:51:19 -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] First Amendment defense Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > Can you find an example of a machine that's art, and still > has a useful function to it? I'd start in a sink and cabinet store. Go look at the expensive faucets. They are highly imaginative, and very artistic -- some of them dispense the water through little troughs and waterfalls, yet each faucet performs the same mundane, useful function. I'm not sure what your point is though. How about this. DeCSS is protected by the First Amendment because it is a description; it is instructions, on how to view a DVD. It is a highly technical description, involving computer instructions, because viewing a DVD is a highly technical process, involving computers. Let's say that the DVD-CCA had invented a new language, a mix of Spanish and French, called Franish, and are "protecting" printed text by translating it into this new, invented language. You figure out the language, and write a textbook, without the authorization of the DVD-CCA, that teaches people to read Franish themselves. The DVD-CCA objects, because they have established a highly lucritive business in licensing Franish-to-English interpreters. Is your textbook protected by the First Amendment? - John From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 2 15:55:40 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA01454 for dvd-discuss-outgoing; Wed, 2 Aug 2000 15:55:40 -0400 Received: from web6404.mail.yahoo.com (web6404.mail.yahoo.com [128.11.22.152]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id PAA01436 for ; Wed, 2 Aug 2000 15:55:39 -0400 Message-ID: <20000802195517.23334.qmail@web6404.mail.yahoo.com> Received: from [207.1.61.98] by web6404.mail.yahoo.com; Wed, 02 Aug 2000 12:55:17 PDT Date: Wed, 2 Aug 2000 12:55:17 -0700 (PDT) From: Pete Broule Subject: [dvd-discuss] Interpreting 1201(a)(3)(B): *with* the 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 I have been trying to understand the definitions in 1201(a)(3), and specifically the meaning and usage of authority, and I'm completely puzzled by 1201(a)(3)(B). In 1201(a)(3)(A), the usage of "without the authority of the copyright owner" seems more or less obvious to me: it modifies "to descramble a scrambled work, to decrypt an encrypted work, or otherwise to avoid, bypass, remove, deactivate, or impair a technological measure." For simplicity, let's say it modifies "to descramble." The subsection can be rewritten as "An act of descrambling qualifies as circumventing a technological measure if the act of descrambling is not authorized by the copyright owner." This does nothing to answer the question of whether there are any rules for granting the authority, such as whether the authority is implicitly granted at sale, or whether the copyright owners can qualify the authority any way they please (for example, by the descrambling devices), or whether the authority should be explicitly communicated to the end user. But assuming we know the game rules for authority, 1201(a)(3)(A) gives us an unambiguous way to tell whether a certain act of descrambling is circumvention or not. But 1201(a)(3)(B) defies my understanding of English grammar. "[A] technological measure ``effectively controls access ...'' if [it] ... requires the application of information ..., with the authority of the copyright owner, ..." I couldn't seem to find a definite answer to this anywhere. What does "with the authority ..." mean here?? Does it modify "requires," meaning that the *requirement* for "the application of information, or a process or a treatment" must be authorized by the copyright owner? It seems a grammatically valid interpretation, but doesn't make much sense to me. Does it modify "application," meaning that the measure not only requires you to apply information (or a process or a treatment), but it also requires that you be authorized by the copyright owner to apply it? To me, this seems to be the most sensible parsing. But this assumes that when you apply identical treatment to the technological measure, it has some way of telling whether you were authorized to apply it. In this interpretation, the indication of authorization, by definition, cannot be wholly contained in the treatment itself. That means, the measure must rely on some external data (like reading the copyright owner's mind, or some database), to determine whether the application of treatment is authorized. That certainly isn't something CSS does. It requires a certain treatment, but doesn't require anyone to be authorized by a movie studio to apply that treatment (or we wouldn't have this lawsuit in the first place). Does "with the authority" means that the required information, process or treatment must *contain* the copyright owner's authority? That's semantically invalid: authority isn't something that can be contained in information or in a process. Does "authority" mean "representation of authority?" That would be a big stretch. But even if so, then DeCSS comes with the same "authority" as a licensed player. Am I missing something? I wish I could ask Mr. Gold these questions: 1. What is the technological measure DeCSS is used to circumvent? (I presume, CSS encryption on the DVD.) 2. What is the normal course of operation of ? (Who gets to decide that, anyway?) 3. What does "to gain access to the work" mean in the case of DVDs? (I presume, to read the plaintext of the movie.) 4. Exactly what information, process or treatment does require to be applied during before one can ? (I presume, the CSS algorithm and a player key.) 5. Now, pray tell, where is the authority of the copyright owner required? __________________________________________________ Do You Yahoo!? Kick off your party with Yahoo! Invites. http://invites.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 2 16:03:52 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA03082 for dvd-discuss-outgoing; Wed, 2 Aug 2000 16:03:52 -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 QAA03079 for ; Wed, 2 Aug 2000 16:03:51 -0400 Received: from localhost (jerwin@localhost) by osf1.gmu.edu (8.8.8/8.8.8) with ESMTP id QAA07122 for ; Wed, 2 Aug 2000 16:03:36 -0400 (EDT) Date: Wed, 2 Aug 2000 16:03:36 -0400 (EDT) From: Jeremy A Erwin To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] A useful document for circumvention brief Message-ID: MIME-Version: 1.0 Content-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 may have been poste on the list before, but the document Intel, IBM, Matsushita,Toshiba. _Content Protection System Architecture: A Comprehensive Framework for Content Protection_. Revision 0.81. 17 Feb 2000. may be useful It's available at http://www.dvdcca.org/4centity/data/tech/cpsa/cpsa081.pdf It describes CSS as CPSA consistent (page 17) reqires encryption of all content (page 16) describes encryption as a "hook" (6- 8) describes systems that use access control in a manner non consistent with our reading of 1201... (5) Jeremy From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 2 16:40:21 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA09262 for dvd-discuss-outgoing; Wed, 2 Aug 2000 16:40:21 -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 QAA09259 for ; Wed, 2 Aug 2000 16:40:19 -0400 Received: from ip128.bedford8.ma.pub-ip.psi.net ([38.32.78.128]) by relay21.smtp.psi.net with smtp (Exim 3.13 #3) id 13K5J4-0005dJ-00 for dvd-discuss@eon.law.harvard.edu; Wed, 02 Aug 2000 16:40:02 -0400 From: Ron Gustavson To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] first amendment defense Date: Wed, 02 Aug 2000 16:33:46 -0400 Message-ID: References: <5A8391CA2D9ED311AFAA080009D982B10B1D96@mail2.onetouch.com> In-Reply-To: <5A8391CA2D9ED311AFAA080009D982B10B1D96@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 QAA09260 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Wed, 2 Aug 2000 12:45:36 -0700 , Richard Hartman wrote: >I don't think that C. is saying is something similar to what >I recently posited. Not that a program is equivilant to the >machine that it is running on (as Ron seems to hear), but rather >that a program is a device that exists and performs work in a >non-physical (i.e. digital) realm. And -- within the context >of that realm -- it is the equivilant of a machine rather than >a document or piece of artwork. (e.g. MS Word is a "machine" >for displaying MS documents). But in that realm, there are machines which only just work [a Ford Escort] and there are machines that work elegantly [name your sports car.] I referred to the Museum of Modern Art for a reason. Functional art can be expressive, and, in fact, probably must be expressive to be considered art. The freedom to create a superlative machine is (I believe) protected by the first amendment. __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 2 16:41:19 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA09309 for dvd-discuss-outgoing; Wed, 2 Aug 2000 16:41:19 -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 QAA09276 for ; Wed, 2 Aug 2000 16:41:09 -0400 Message-ID: <20000802204012.11571.qmail@web509.mail.yahoo.com> Received: from [131.44.121.4] by web509.mail.yahoo.com; Wed, 02 Aug 2000 13:40:12 PDT Date: Wed, 2 Aug 2000 13:40:12 -0700 (PDT) From: Bryan Taylor Subject: RE: [dvd-discuss] the definition of 'Circumvention' To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-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 wrote: > >The Xing player decrypts and thereby creates a copy in memory. This > >has no legal difference from persistant storage. (Copies in > >memory are copies). > > No, this is a completely bogus argument. Copies in memory are > transient and never a complete copy of the work. There's a > difference there that could be easily argued in court. Actually, it's well settled and often quoted law. I had to look up where it came from, though. The precedent cited to prove this is: MAI Sys. Corp. v. Peak Computer, Inc., 991 F.2d 511 (9th Cir. 1993); I'll save you the trouble of reading the case and cite Nimmer, who cites it and simultaneously confirms that there must be tangible evidence of authorization from the copyight holder to extend authority beyond that which is statutorily transfered at First Sale: >From "The Metamorphosis of Contract into Expand": http://eon.law.harvard.edu/openlaw/DVD/research/metamorphosis.html Under existing copyright law, the manufacturer's 10-user limitation is enforceable regardless of whether state law treats the above notice as part of a binding bilateral contract. n54 A copyright owner may grant a non-exclusive license by any words or conduct tending to show such a license. n55 Thus, by virtue of the above language, the publisher of Virulator has expanded Itys's right to use his copy on a single machine n56 to include making one copy on a server and up to nine other copies in the random access memory (RAM) of client computers. If Itys were to allow 20 users to access the software, the copies existing in the RAM of machines 11-20 would be unlicensed and hence infringing. n57 The publisher thus has the lever it needs to preclude unlicensed use, without obtaining Itys's enforceable promise via the U.C.C. not to use the software on more machines than authorized. n54. The U.C.C. drafters lean in the same direction. See U.C.C. 2B-111 reporter's notes (Draft, Mar. 1998) (restricting usage for consumers only enforceable under copyright law without any requirement for assent). n55. See 3 Nimmer on Copyright, supra note 13, 10.03[A]. n56. That is, the default right that Itys would have in the absence of the subject language under 17 U.S.C. 117. n57. See MAI, 991 F.2d 511 (stating that loading a copy of software into computer's RAM constitutes creation of a "copy" under the Copyright Act). __________________________________________________ Do You Yahoo!? Kick off your party with Yahoo! Invites. http://invites.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 2 16:44:09 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA09414 for dvd-discuss-outgoing; Wed, 2 Aug 2000 16:44:09 -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 QAA09411 for ; Wed, 2 Aug 2000 16:43:55 -0400 Received: (from phil@localhost) by ramtop.demon.co.uk (8.9.3/8.9.3) id VAA15085 for dvd-discuss@eon.law.harvard.edu; Wed, 2 Aug 2000 21:49:00 +0100 Date: Wed, 2 Aug 2000 21:49:00 +0100 From: Phil Harrison To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] first amendment defense Message-ID: <20000802214859.A15046@ramtop.demon.co.uk> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <5A8391CA2D9ED311AFAA080009D982B10B1D96@mail2.onetouch.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 0.95.6i In-Reply-To: <5A8391CA2D9ED311AFAA080009D982B10B1D96@mail2.onetouch.com>; from Richard Hartman on Wed, Aug 02, 2000 at 12:45:36PM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Wed, Aug 02, 2000 at 12:45:36PM -0700, Richard Hartman wrote: > > Not that I generally agree with Consigliere (although > in this instance I might), but I belive that Ron's comment > is due to a misunderstanding. > > I don't think that C. is saying is something similar to what > I recently posited. Not that a program is equivilant to the > machine that it is running on (as Ron seems to hear), but rather > that a program is a device that exists and performs work in a > non-physical (i.e. digital) realm. And -- within the context > of that realm -- it is the equivilant of a machine rather than > a document or piece of artwork. (e.g. MS Word is a "machine" > for displaying MS documents). > I would disagree. A PC is a machine that is capable of displaying MS word documents. MS word is a set of instructions detailing how to display MS word documents. Admitedly the compiled code is a very detailed set of instructions, but they are still just instructions. Is there some mileage to be made in the fact that software manufacturers use copyright law to stop unauthorised copying? Can you copyright a machine (OK, I know you can copyright the outer design, but can you copyright the inner workings)? -- Phil Harrison From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 2 16:47:40 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA09481 for dvd-discuss-outgoing; Wed, 2 Aug 2000 16:47:40 -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 QAA09478 for ; Wed, 2 Aug 2000 16:47:39 -0400 Received: by chiara.elte.hu (Postfix, from userid 17806) id E86AA7E1B5; Wed, 2 Aug 2000 22:47:14 +0200 (CEST) Date: Wed, 2 Aug 2000 22:56:20 +0200 (CEST) From: Ingo Molnar To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] copying impossible with a player key? In-Reply-To: <8m9tr3$364$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 2 Aug 2000, David A. Wagner wrote: > > 2 it appears also that one cannot copy the copyrighted works > > 3 protected by CSS even with a player key. > > > > this last sentence i believe not true, because [...] > > You are correct. Copying is possible, with or without a player key. > (Without a player key, bit-for-bit copying of the encrypted content > suffices.) > > But 1201(a) is about access, not copying (right?), so I'm not sure why > this is relevant to the case. because Kaplan appears to have the sense that DeCSS uniquely enables copying of works that was not possible before. (and his injunction is based on that as well) Which is not true. Ingo From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 2 16:50:32 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA09524 for dvd-discuss-outgoing; Wed, 2 Aug 2000 16:50:32 -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 QAA09515 for ; Wed, 2 Aug 2000 16:50:30 -0400 Received: by chiara.elte.hu (Postfix, from userid 17806) id 666667E1B5; Wed, 2 Aug 2000 22:50:13 +0200 (CEST) Date: Wed, 2 Aug 2000 22:59:18 +0200 (CEST) From: Ingo Molnar To: dvd-discuss@eon.law.harvard.edu Subject: RE: [dvd-discuss] the definition of 'Circumvention' In-Reply-To: <20000802204012.11571.qmail@web509.mail.yahoo.com> Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Wed, 2 Aug 2000, Bryan Taylor wrote: > > >The Xing player decrypts and thereby creates a copy in memory. This > > >has no legal difference from persistant storage. (Copies in > > >memory are copies). > Actually, it's well settled and often quoted law. I had to look up > where it came from, though. The precedent cited to prove this is: > MAI Sys. Corp. v. Peak Computer, Inc., 991 F.2d 511 (9th Cir. 1993); to add one more info: the copy is not the copy of the whole work in space, but the whole work in time. But this is still a full copy, because every bit of the work is copied during a Xing playback. (obviously the decrypted work couldnt be fully in RAM even if we wanted, unless gigabytes of RAM is available.) if the "it's just temporary" argument would be valid then it would be valid for temporary disk files as well. Ingo From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 2 17:51:50 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA11674 for dvd-discuss-outgoing; Wed, 2 Aug 2000 17:51:50 -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 RAA11671 for ; Wed, 2 Aug 2000 17:51:49 -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 QAA25544 for ; Wed, 2 Aug 2000 16:51:33 -0500 (CDT) Message-ID: <398897AC.DA9CA157@uic.edu> Date: Wed, 02 Aug 2000 16:50:37 -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] the definition of 'Circumvention' Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > to add one more info: the copy is not the > copy of the whole work in space, but the > whole work in time. But this is still a full copy, > because every bit of the work is copied during > a Xing playback. Is this meaningful? I point out that when you watch a movie, your eyeballs, by means of the natural phenomenon of persistance of vision, create a "copy" of each frame of the movie in your brain, one frame at a time. Does that mean that when you watch a movie, you are copying it? From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 2 18:03:01 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA12717 for dvd-discuss-outgoing; Wed, 2 Aug 2000 18:03:01 -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 SAA12661 for ; Wed, 2 Aug 2000 18:02:57 -0400 Received: (from uucp@localhost) by natsemi-bh.nsc.com (8.8.8/8.6.11) id PAA19401 for ; Wed, 2 Aug 2000 15:02:39 -0700 (PDT) Received: from mailhost1.ia.nsc.com(147.5.200.40) by natsemi-bh.nsc.com via smap (4.1) id xma019154; Wed, 2 Aug 00 15:01:58 -0700 Received: from ball by ia.nsc.com (SMI-8.6/SMI-SVR4) id QAA24227; Wed, 2 Aug 2000 16:01:57 -0600 From: "John Zulauf" To: Subject: [dvd-discuss] A useful document for circumvention brief Date: Wed, 2 Aug 2000 16:05:26 -0600 Message-ID: <000c01bffccd$c305dda0$87ce0593@ia.nsc.com> MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: 8bit X-Priority: 3 (Normal) X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook 8.5, Build 4.71.2377.0 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 On Wed, 2 Aug 2000 16:03:36 -0400 (EDT) Jeremy A Erwin referenced: > http://www.dvdcca.org/4centity/data/tech/cpsa/cpsa081.pdf I just finished this analysis and realized with horror the true danger of this sort of comprehensive content control. If the CPSA document were CPSA protected, I wouldn't have been able to do the analysis I just did without retyping the content from window to window. If this content were a multimedia presentation, it wouldn't have been possible at all. Chilling. ---------- Is this a "smoking gun" to expose a cartel or the "death knell" for fair use. Read on, it gets better (or worse)... An overview of CPSA: What a nightmare. We have here the systematic elimination of first sale and fair use at every turn. I'm not sure whether to cry or laugh. If the sort of monopolistic tying implied by the following is deemed legal this would be a true tragedy for our nation. > The protection comes from compliant devices responding > appropriately to manage the content according to the CMI. > Such protection is realized only if there is some > means, or "hook", to compel devices to be compliant. > > Encryption is that hook. Encryption is a way of scrambling > digital content so that it is unusable (not recognizable) > unless it is first descrambled (decrypted). To get the > necessary intellectual property to be able to decrypt the > content, a license is required. That license contract > specifies requirements to manage the content according to > its CMI. This is an explicit statement that the TPM is a **pretext**. However, this so-called "hook" has the force of the entire US gov't behind it as they claim the TPM has 1201 protection. That's no hook, that's fishing with grenades! Further, it says that the TPM has nothing to do with protecting the content -- it's all about controlling the behavior of devices which want to use the content. This is explicitly use control and explicitly tying the TPM to a license allowing to access content. "US v. Paramount" anybody? Note that it is explicitly taking away the end-users first sale and fair use with a non-party agreement. When a group of parties get together to violate my rights is this conspiracy? CPSA as an architecture is comprised of a series of axioms. This is odd because in common parlance an architecture has to do with functional blocks, subsystems, key alogrithmic components. The "axioms" sound more like contractual obligations than an overall system design. Aside from that the axioms are themselves collectively and separately a nightmare, especially when considering non-PPV content (broadcast or published). Ironically, there's still nothing in the axioms to prevent wholesale commercial piracy of published media. > ============= > CPSA Axioms > ============= > CPSA provides a framework of 11 axioms that describe how > CPSA-compliant devices handle the again this is explicitly control over the behavior of devices > three major areas that are critical to ensuring a > comprehensive, consistent content protection scheme: > content management information, access, and recording. note that fair use and first sale didn't make the cut here? > Content Management Information Axioms > Content Management Information (CMI) is information carried > with content that indicates limitations on its allowed usage, > such as constraints on making copies. > 1. Content Owner Selects CMI "content owner" -- is pure fiction. Their is a copyright holder who holds certain limited rights over their works, but there is no content owner! > Axiom: The content owner selects the content management > information (CMI) from the supported options. corollary: CPSA allows total control over the use of content regardless of the traditional balance in copyright law, case law (Sony, Paramount, Vault v. Quaid) to suit the needs of a media company's business model. > The content owner selects the appropriate content management > information for his or her content from the supported options. > The available options vary for different types of content according to > agreements made between content owners and device manufacturers. we allow non-party agreements to control the behavior of digital media purchasers > Video CMI follows the encoding rules for video content, > which are derived from the Digital Millennium Copyright Act > of 1996 and are currently under discussion. Audio CMI follows > the DVD-Audio Framework.2 Huh? anybody have any idea what the heck they are talking about? > 2. Ensure Digital CMI Integrity > Axiom: While the content remains in the encrypted digital form, > the CMI integrity is ensured by licensing terms imposed by the "hook" of encrytpion > during transmission and storage using the encryption and key > management protocols. We allow copyright holders to ignore "Sony v. ???" and control the user's storage of broadcast content. > CMI is stored and/or transmitted along with the content. > While the content remains in the encrypted digital form, > the CMI can be carried digitally. For example, the CMI > may be encrypted along with the content. In other words we can even hide the CMI rules such that non-protected content cannot be known to be non-protected without circumvention... (slick!). > 3. Optional Watermarking > Axiom: At the content owner's option, the original content > may be watermarked for the purpose of transmitting the CMI > with the content, independent of its specific analog, > digital or encrypted digital representation. Again we can hide the CMI in the content so you can't know whether you can copy it without first decrypting the content. Also it means -- "if we're paranoid, we can reduce your image quality to encode our paranoia in the picture." Note below. > Some content owners may not want to include a watermark > in portions of content where they are concerned about > transparency, for example. > ===================== > Access Control Axioms > ===================== > In CPSA, encryption can be used to prevent non-compliant > devices from accessing protected content. Alternatively, > where encryption is not present, compliant devices > control access by detecting watermark CMI and responding > appropriately. Note that the purpose of encryption is not to protect the content but control the implementation of the devices. Note that nothing is said about the authority of the user or the "authority of the copyright holder", only the compliance of the device. > 4. Encrypt Prerecorded Content > Axiom: All CPSA content on prerecorded media is encrypted. > > Content encryption is a key facet of CPSA. It ensures that > the content cannot be accessed until it is decrypted. What we have here is death of the public domain, and the "limited times clause." All digital content is locked up in the unlimited times of the non-party license agreement. Fair use and archival are dead -- all future media is own by the media companies to serve their business models. This cannot be what the framers of the constitution had in mind. > In conjunction with licensing structures, it is the "hook" > that compels users to honor the provisions of the content > protection system. Thus, all digital content that has usage > restrictions on prerecorded media (e.g. DVD-ROM) is encrypted. Note here the explicit non-privity. The USER is compelled by a LICENSE with the device MANUFACTURERS. "I married Sue, and we agreed that you can't marry Betsy." BZZZZT! Thanks for playing. Note also that the encryption isn't the TPM but only the "hook" here again. > 5. Encrypt Authorized Copies > Axiom: All authorized copies of CPSA content are encrypted, > except where specifically agreed otherwise. > >Just as all content with usage restrictions on prerecorded > media is encrypted, so are all authorized digital copies > of such content (meaning content that arrives encrypted > and/or containing watermark CMI). For example, when a > CPSA-compliant device receives analog > content with watermark CMI, a digital copy of the analog > input will be encrypted. This allows the encryption "hook" > mentioned previously to remain in place even for authorized > copies. So the copyright holders can (a) control by technical means when I can copy and (b) they will force my copy to be encrypted when they do allow it. By this means even the copies they allow me are walled off from me. Again, where is the slightest possibility of fair use, space shifting, first sale, or the limited times clause? Out the window!!! > An exception to this is the DVD-audio framework, which > allows an unencrypted copy on legacy media (CD-R, CD-RW, > Mini-Disc or DAT) of any audio content with a sound > quality equivalent to CD-Audio or less. Gee, aren't they nice. I can still make CD-R's ... as if they could stop it. Note that since DAT is at 48KHz vs. CD's 44KHz even DAT copies must be encrypted... how to enforce that? In any case, where do they get off telling me what I can do with the analog output of my stereo? > 6. Playback Control > Axiom: Compliant playback modules detect the watermark > CMI when present in unencrypted content and respond > appropriately to prevent playback of unauthorized copies. > > Before playing back unencrypted digital content, compliant > playback modules check for watermark CMI. If present in > unencrypted digital content, compliant modules will not > allow playback, since all digital copies of content with > watermark CMI should be encrypted. Interesting logic here. All unencrypted copies are de facto unauthorized. Where is a test for the authority of the copyright holder? Only in the presence of a given TPM which the copyright holder can impose arbitrarily. Where did the copyright holders get this unlimited amount of control? They believe the DMCA gives it to them. Note that this is how the encryption hook is "set." Only encrypted copies are valid, and to play encrypted copies you need to licences the CPSA IP. To do that you must agree to all their axioms. This is euphamistically referred to as "adopt their archictecture" -- truely newspeak at it's finest. > 7. Output Protection > Axiom: For encrypted content, compliant playback and > source modules apply an approved protection scheme to > all outputs, according to the digital CMI settings, > except where specifically agreed otherwise. > Protection of encrypted CPSA content must continue during > transmission, either by encryption (e.g., DTCP) or by an > approved analog protection scheme such as Macrovision™. More contractual device control beyond the scope of the encryption. Note the lovely added cost and complexity now built in to every piece of consumer electronics. > 8. Manage Protected Output of Unencrypted Content > Axiom: Compliant source modules check the watermark CMI > of unencrypted content prior to protected digital output, > and if present, set the digital CMI for the output accordingly. This shows that the encryption is pure pretext and not needed except as the licensing hook. Unecrypted data is given the same protection by compliant devices as encrypted data. > A compliant source module may optionally forward content > that arrives unencrypted to a protected digital output. > If it does so, the module must first check for watermark CMI, > and if it is present, set the digital CMI of the protected > output accordingly. This ensures that the digital CMI > corresponds to the watermark CMI, which is necessary since > compliant recording modules downstream will check only the > digital CMI of encrypted content to determine if a copy is > authorized. Note that encryption is not even needed once a critical mass of "compliant" devices is deployed. For a user compliant devices are viral -- once a CMI is detected the content is treated as if it were encrypted (and in fact will encrypt a recording). To quote "Scent of a Woman" -- "What a sham!" > ======================== > Recording Control Axioms > ======================== > Recording devices maintain content protection by examining > digital or watermark CMI and making copies only if authorized > to do so. Copies of content are encrypted (except as noted > previously), and the digital and watermark CMI are updated > to continue the protection of the copied material. > > 9. Examine CCI Before Copying and Respond Accordingly > Axiom: Compliant recording modules detect and respond > appropriately to the CCI, if it is present, before creating > a copy, if authorized to do so. > > o Digital CCI is examined for encrypted content > o Watermark CCI is examined for unencrypted content > Before making a copy, a compliant recording module checks > the CCI information. If the module is making a copy from an > encrypted source, it checks the digital CCI; otherwise, it > checks the watermark CCI. The copy is made only if the CCI > indicates that it is authorized. How can a device know when I have fair use rights? It cannot. Note again the implication that encryption is not necessary to protect works if devices are compliant. The TPM is a "hook" to enforce the license, but uneeded functionaly. > 10. Update CCI Before Copying > Axiom: Compliant recording modules appropriately update both > the digital CCI and the watermark CCI, when present, before > creating a copy. This is implementation housekeeping. Note again that encryption is not required for CCI as unencrypted but watermarked content receives the same protections. > Prior to creating a copy of CPSA content, compliant recording > modules will appropriately update both the digital CCI and the > watermark CCI, if present. Since the watermark CCI is always > updated when a copy is made, compliant playback modules are > not required to have watermark updating capability. > Note that > for non-CPSA content (unencrypted content without watermark > CMI), a protection system may still support making an > encrypted copy, in which case the digital CCI of the copy is > set as defined by that system. It doesn't say what the CCI of the system is. "Unlimited copies" or "no copies" -- applied to my home videos at the devices discretion... Hmmmm. > 11. Temporary Images > Axiom: Compliant recording modules do not inspect or update > either the digital CCI or the watermark CCI when making an > image that is both temporary and localized. > > To allow for enhanced (e.g. time-shifted) viewing of copy-never Where is the legal precedent to allow "copy-never"? In "Sony v. ..." in "Vault v. Quaid" where? > content, compliant recording modules do not inspect or update > either the digital CCI or the watermark CCI when making an > image that is both temporary and localized. > > Content controlled in this manner must exist in a playable form > for only a limited time, and must be stored in such a way that > it can only be played back from the system used to create the > image. Since such an image is not useful as an archival copy, > it may be made independent of restrictions on copying indicated > by the CCI. Here they pay some limited lip service to "Sony v. ..." and fair use "time shifting" -- however space shifting, exerpting, and archival are clearly ignored. The restriction to same device is incredible. What if I time shift a program in the family room and want to view it in the bedroom (because the family room is in use) for reasons I could not know a priori? Lip service! Also, how can this be implemented on a software player? An encrypted file system or somesuch? > Note that although CCI is neither checked nor updated > in this case, some types of content might contain other types of > CMI, such as bits related to time shifting, that would need to > be checked and > updated appropriately. Oops I spoke to soon. While the CCI always allows for the limited, same-device time shifting, CMI is allowed to prevent it. Nice. They can claim "time-shifting" is always allowed by the copy control subsystem while allowing it's prevention by the CMI -- nicely deceptive. "The door is always open -- but sometimes we electrify the porch." I know this is a long note but the CPSA document (and I've only gone over a little bit of it) deserves this kind of disection. It's too bad this didn't get on the record to show the intent of the P's and the DVD CCA. Even if we win this fight, "the race ... it continues" -- Ben Hur. John M. Zulauf private netizen From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 2 18:18:33 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA13553 for dvd-discuss-outgoing; Wed, 2 Aug 2000 18:18:33 -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 SAA13550 for ; Wed, 2 Aug 2000 18:18:22 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id SAA21395 for dvd-discuss@eon.law.harvard.edu; Wed, 2 Aug 2000 18:22:52 -0400 Date: Wed, 2 Aug 2000 18:22:47 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] fair use again Message-ID: <20000802182247.E21208@eldritchpress.org> References: <5A8391CA2D9ED311AFAA080009D982B10B1D88@mail2.onetouch.com> <200008012152.RAA14842@soggy-fibers.ai.mit.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <200008012152.RAA14842@soggy-fibers.ai.mit.edu>; from rst@ai.mit.edu on Tue, Aug 01, 2000 at 05:52:15PM -0400 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, Aug 01, 2000 at 05:52:15PM -0400, Robert S. Thau wrote: >... > And they ask whether analog projection suffices, and why you can't > just use a licensed DVD player to play the thing. (Both in the > transcript, IIRC, though I haven't checked). You'd need to postulate > a region-coded DVD, or something like that, unavailable in other > media, and explain the importance of all those restrictions. And > while you're doing this, in detail, the plaintiffs can say (correctly) > that you're postulating a hypothetical situation which doesn't have > much to do with the facts at hand. But plaintiffs have brought a case under 1201. It might later be determined by the Librarian of Congress that what Nesson is doing with DeCSS and DVDs in his online law courses might be fair use. That still has to be determined (if that is even possible) by the facts. What Congress has done here is pass a contradictory law. If you look at only parts of it, as plaintiffs do, and as they seem to have persuaded Judge Kaplan to do, it does seem as if they are trying to outlaw the technology no matter if it is fair use. But then two question arise which can invalidate the DMCA: 1) If Congress really meant this, it is unconsitutional. 2) If Congress meant what it said about fair use exceptions, then that contradicts the rest of 1201. Hence DMCA should be thrown out. I posit that Congress realized it passed a contradictory law and threw it to the Librarian to figure out if any practical interpretation of it could be made. But I assert there is none. We should not be doing the Librarian's job of trying to figure out a reasonable interpretation of the law. From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 2 18:32:21 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA13733 for dvd-discuss-outgoing; Wed, 2 Aug 2000 18:32:21 -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 SAA13730 for ; Wed, 2 Aug 2000 18:32:06 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id SAA21445 for dvd-discuss@eon.law.harvard.edu; Wed, 2 Aug 2000 18:36:36 -0400 Date: Wed, 2 Aug 2000 18:36:31 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] [GIkonen@vlg.com: Re: Summers v Tice (and Copyright?)] Message-ID: <20000802183631.G21208@eldritchpress.org> Mime-Version: 1.0 Content-Type: multipart/mixed; boundary="pWyiEgJYm5f9v55/" 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 --pWyiEgJYm5f9v55/ Content-Type: text/plain; charset=us-ascii I forward discussion from the list cni-copyright@cni.org --pWyiEgJYm5f9v55/ Content-Type: message/rfc822 Return-Path: Received: from localhost (root@localhost [127.0.0.1]) by eldritchpress.org (8.8.7/8.8.7) with ESMTP id HAA20951 for ; Wed, 2 Aug 2000 07:19:56 -0400 Received: from pop.ne.mediaone.net by fetchmail-4.5.8 POP3 for (single-drop); Wed, 02 Aug 2000 07:20:01 EDT Received: from chmls16.mediaone.net ([24.147.1.151]) by chmls14.mediaone.net (Netscape Messaging Server 4.15) with ESMTP id FYNW8M00.UU9 for ; Wed, 2 Aug 2000 07:07:34 -0400 Received: from chmls12.mediaone.net (chmls12.mediaone.net [24.147.1.148]) by chmls16.mediaone.net (8.8.7/8.8.7) with ESMTP id HAA13995 for ; Wed, 2 Aug 2000 07:07:34 -0400 (EDT) Received: from b.cni.org (b.cni.org [192.100.21.6]) by chmls12.mediaone.net (8.8.7/8.8.7) with SMTP id HAA21484 for ; Wed, 2 Aug 2000 07:07:33 -0400 (EDT) Received: from localhost by b.cni.org (5.65v4.0/1.1.10.5/13Aug97-0713PM) id AA25666; Wed, 2 Aug 2000 04:42:35 -0400 Received: from cni.org by b.cni.org (5.65v4.0/1.1.10.5/13Aug97-0713PM) id AA18224; Tue, 1 Aug 2000 21:11:12 -0400 Received: from mail02-oak.pilot.net (mail-oak-2.pilot.net [198.232.147.17]) by cni.org (8.8.7/8.8.7) with ESMTP id VAA16494 for ; Tue, 1 Aug 2000 21:07:29 -0400 Received: from vlgwall.venlaw.com (unknown-211-5.venlaw.com [206.189.211.5] (may be forged)) by mail02-oak.pilot.net with ESMTP id SAA25292 for ; Tue, 1 Aug 2000 18:09:26 -0700 (PDT) Received: from vlgwall.venlaw.com (root@localhost) by vlgwall.venlaw.com with ESMTP id SAA06727 for ; Tue, 1 Aug 2000 18:08:51 -0700 (PDT) Received: from worldtalk.vlg.com ([10.1.1.15]) by vlgwall.venlaw.com with SMTP id SAA06723 for ; Tue, 1 Aug 2000 18:08:49 -0700 (PDT) Received: from 10.1.1.2 by worldtalk.vlg.com with ESMTP (WorldSecure Server SMTP Relay(WSS) v4.0.2); Tue, 01 Aug 00 18:08:49 -0700 Received: by mpmx with Internet Mail Service (5.5.2448.0) id ; Tue, 1 Aug 2000 18:08:48 -0700 Message-Id: <32BAF5DEFD81D311ABF900902785B167027EEFC4@mpmx> Date: Tue, 1 Aug 2000 18:08:47 -0700 Reply-To: cni-copyright@cni.org Sender: owner-cni-copyright@cni.org Precedence: bulk From: "Ikonen, Greg" To: Multiple recipients of list Subject: Re: Summers v Tice (and Copyright?) X-To: "'cni-copyright@cni.org'" X-Server-Uuid: e281e03a-6254-11d3-998d-00c04f2c7e71 X-Mailer: Internet Mail Service (5.5.2448.0) X-Wss-Id: 1599AB2B951034-01-01 X-Listprocessor-Version: 8.1 -- ListProcessor(tm) by CREN On Mon, Jul 31, 2000, Eric Eldred wrote: > > Here is an interesting case for lawyers and law students. > I'm trying to help out with the OpenLaw OpenDVD discussion > in the DeCSS case in New York. > > The discussion is online at: > > http://eon.law.harvard.edu/openlaw/DVD > > Judge Kaplan has raised the odd problem of how to assign > responsibility for something like contributory copyright > infringement--very hypothetically, since there has been > no proof of any such thing and it remains to be seen if > anyone has to prove that, since the case is raised by > movie studios under the DMCA. But in any case, he wants to > be briefed on this point. > > As a nonlawyer, I am puzzled about the question as to whether > negligence (as in Summers) might be concluded without a finding > of harm. And in copyright infringement, has there been a case > where the direct infringer and any contributory infringer have > been told to divide the proof, responsibility and damages, instead > of putting the burden on plaintiff? While IAAL, it has been some time since I've read Summers v. Tice. If memory serves, it helped create the doctrine of joint and several liability, which is that if joint action caused harm, the joint actors should not be able to escape liability by arguing that plaintiff hadn't proved which particular actor's actions were the direct cause of the harm. If I understand Judge Kaplan, he's mulling over the issue of what happen IF and WHEN plaintiffs prove that there are copies of decrypted DVDs that were decrypted using a copy of DeCSS. Assuming that infringement exists, and that these copies were generated by using DeCSS, the question is whether plaintiff bears the burden of proving causation -- that the contributory defendant's actions caused the harm -- or whether the defendant has to prove his actions did not cause the harm. Not surprisingly, the answer to this question usually answers the liability question, since proof either way is usually not available. Causation, it seems to me, has two parts here: first, were any of the decrypted DVDs decrypted with DeCSS (as opposed to another decryption tool)? And second, assuming proof that DeCSS was the tool used, was it a copy of DeCSS that was downloaded from a site that defendant posted a link for, or obtained from another source? I'd think that proof of the first would be difficult, and proof of the second almost impossible, unless you get the cooperation of the direct infringer him/herself. Under either scenario, though, liability would likely hinge on who has the burden of proof on causation. As far as direct/contributory copyright cases, Subafilms comes to mind, which I think stands for the proposition that you have to prove that the actions you contributed toward were themselves infringing. But since that case concerned itself with the niceties of national borders, it may have little application in cyberspace. Greg Ikonen gikonen@vlg.com --pWyiEgJYm5f9v55/-- From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 2 18:39:08 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA13832 for dvd-discuss-outgoing; Wed, 2 Aug 2000 18:39:08 -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 SAA13829 for ; Wed, 2 Aug 2000 18:39:07 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id ; Wed, 2 Aug 2000 15:39:12 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1D97@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] first amendment defense Date: Wed, 2 Aug 2000 15:39:11 -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: Phil Harrison [mailto:pharrison@ramtop.demon.co.uk] > Sent: Wednesday, August 02, 2000 1:49 PM > To: dvd-discuss@eon.law.harvard.edu > Subject: Re: [dvd-discuss] first amendment defense > > > On Wed, Aug 02, 2000 at 12:45:36PM -0700, Richard Hartman wrote: > > > > Not that I generally agree with Consigliere (although > > in this instance I might), but I belive that Ron's comment > > is due to a misunderstanding. > > > > I don't think that C. is saying is something similar to what > > I recently posited. Not that a program is equivilant to the > > machine that it is running on (as Ron seems to hear), but rather > > that a program is a device that exists and performs work in a > > non-physical (i.e. digital) realm. And -- within the context > > of that realm -- it is the equivilant of a machine rather than > > a document or piece of artwork. (e.g. MS Word is a "machine" > > for displaying MS documents). > > > I would disagree. A PC is a machine that is capable of > displaying MS word > documents. MS word is a set of instructions detailing how to > display MS word > documents. > > Admitedly the compiled code is a very detailed set of > instructions, but they are > still just instructions. > > Is there some mileage to be made in the fact that software > manufacturers use > copyright law to stop unauthorised copying? Can you copyright > a machine (OK, I > know you can copyright the outer design, but can you > copyright the inner > workings)? > the problem here (in my opinion) is that the law is not matching the situation. because computer technology is relatively new and more importantly pretty opaque (especially to non-technical people like the legislators) their attempts to adapt existing law to the new situation does not always make sense. I am suggesting a different metaphor be applied than the one that currently is used. Otoh, this is very off-topic for this list, and perhaps we should take this discussion off-line. -- -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 Aug 2 18:50:36 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA14069 for dvd-discuss-outgoing; Wed, 2 Aug 2000 18:50:36 -0400 Received: from tbird.iworld.com ([63.236.72.237]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id SAA14066 for ; Wed, 2 Aug 2000 18:50:35 -0400 Received: (from nobody@localhost) by tbird.iworld.com (8.10.2/8.10.2) id e72MoQO13412; Wed, 2 Aug 2000 18:50:26 -0400 Date: Wed, 2 Aug 2000 18:50:26 -0400 Message-Id: <200008022250.e72MoQO13412@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] the definition of 'Circumvention' Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Bryan Taylor wrote: >--- Jim Taylor wrote: > >> >The Xing player decrypts and thereby creates a copy in memory. This >> >has no legal difference from persistant storage. (Copies in >> >memory are copies). This is scary. You cannot run a computer without executable storage. Hardware is a skeleton in a computer. There are no moving parts. > >Under existing copyright law, the manufacturer's 10-user limitation is >enforceable regardless of whether state law treats the above notice as >part of a binding bilateral contract. n54 A copyright owner may grant a >non-exclusive license by any words or conduct tending to show such a >license. n55 Thus, by virtue of the above language, the publisher of >Virulator has expanded Itys's right to use his copy on a single machine >n56 to include making one copy on a server and up to nine other copies >in the random access memory (RAM) of client computers. If Itys were to >allow 20 users to access the software, the copies existing in the RAM >of machines 11-20 would be unlicensed and hence infringing. n57 The >publisher thus has the lever it needs to preclude unlicensed use, >without obtaining Itys's enforceable promise via the U.C.C. not to use >the software on more machines than authorized. > > Hey holding an axe in my hand to chop wood isn't the same as holding an axe in my hand to steal it. >__________________________________________________ >Do You Yahoo!? >Kick off your party with Yahoo! Invites. >http://invites.yahoo.com/ 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 Wed Aug 2 19:40:51 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA16721 for dvd-discuss-outgoing; Wed, 2 Aug 2000 19:40:51 -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 TAA16718 for ; Wed, 2 Aug 2000 19:40:49 -0400 Message-ID: <20000802234004.19590.qmail@web515.mail.yahoo.com> Received: from [64.81.25.37] by web515.mail.yahoo.com; Wed, 02 Aug 2000 16:40:04 PDT Date: Wed, 2 Aug 2000 16:40:04 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] first amendment defense To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --- Phil Harrison wrote: > Is there some mileage to be made in the fact that software > manufacturers use copyright law to stop unauthorised copying? Can > you copyright a machine (OK, I know you can copyright the outer > design, but can you copyright the inner workings)? Yes! Copyright protects the original expression within an author's writings. It is well settled law that computer programs are copyrighted as 'literary works'. If you search the mailing list archives, you'll find several Circuit opinions stating this. I've always believed that this is sufficient to show that computer programs as a class are protected by the First Amendment. I don't know what 'the press' is isn't those who create and distribute 'literary works'. __________________________________________________ Do You Yahoo!? Kick off your party with Yahoo! Invites. http://invites.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 2 19:51:04 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA17386 for dvd-discuss-outgoing; Wed, 2 Aug 2000 19:51:04 -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 TAA17382 for ; Wed, 2 Aug 2000 19:51:03 -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 TAA12326 for ; Wed, 2 Aug 2000 19:50:48 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id TAA21153; Wed, 2 Aug 2000 19:50:47 -0400 (EDT) Date: Wed, 2 Aug 2000 19:50:47 -0400 (EDT) Message-Id: <200008022350.TAA21153@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Authority --- some fixups. In-Reply-To: <20000802182609.27472.qmail@web512.mail.yahoo.com> References: <20000802182609.27472.qmail@web512.mail.yahoo.com> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Bryan Taylor writes: > Good idea. If we submit it to the Copyight Offic, it might be a good > idea to include an introduction that goes through the questions that we > are trying to answer and states our thesis. Here's what I came up with very quickly, without enough time to do a proper job. (The thing it's missing for that audience is a page or so demolishing "it's piracy", which is a line they'll be trying for the LOC even if they've abandoned it in court). Introduction The Digital Millenium Copyright Act gave copyright holders remarkable new powers to regulate the content of their works, which have raised concerns that the traditional balance in the law between the rights granted to copyright holders and the public interest. These concerns might be allayed somewhat if the copyright holders were carefully staying within the bounds and intent of the law. However, that seems not to be the case. In one of the first trials under the law, Universal v. Corley (one of the so-called ``DeCSS cases''), the copyright holders have adopted a broad, sweeping view of their powers under the law --- far more sweeping than anything envisioned by Congress, as they themselves described the intent of the law they passed in their debates and their reports. Were their interpretation to stand, it would give them an awesome degree of power over where and how citizens were able to access movies, and other protected content, far in excess of what was intended by Congress, and with very deleterious effects on the public interest. This clearly calls for rulemaking findings which will restore some semblance of the actual intent of the law --- findings which, as we will show, would still leave copyright holders with a wide scope of possible measures with which to offer legitimate protection for their work. Specifically, the plaintiff's case in Universal et al. v. Corley relies on an interpetation of the Digital Millenium Copyright Act (DMCA), specifically 17 USC 1201(a) --- a view already articulated by their attorney, Dean Marks, in hearings for the librarian of Congress --- which we regard as fundamentally flawed. This section of the law provides protection for ``access control mechanisms'', which as we shall show, was clearly intended by Congress to mean mechanisms which perform some sort of affirmative check that a viewer is authorized to view a particular work. Several such systems have been deployed by the movie studios to protect their work, including one (codeveloped with Circuit City, and marketed to consumers under the name ``Divx'') which actually checked the authority of a particular viewer to view works distributed on DVD disk. However, the ``Content Scrambling System'' supposedly ``hacked'' by the plaintiffs in this case performs no such check --- a CSS-enabled player will view {\em any} CSS formatted DVD without performing any check that the user is authorized to view it. Plaintiffs claim protection for it anyway by misreading the law to state that the ``authority of the copyright owner'' referred to in the statute is not a grant of authority to view any particular work, but rather authority to implement the CSS process {\em itself} --- the authority to govern not merely the {\em act} of access, but the permissible {\em means} of access. Their assertion is in conflict with the text of the law, with the legislative record of Congress enacting the law, and with enduring, basic constitutional principles regarding intellectual property protection. --------- [entire existing paper, sans intro, goes here ] ------------ Conclusion: The law regarding intellectual property protection in the United States has always stressed a balance of interests, between, in particular, copyright holders and the general public. This theme of balance was kept carefully in mind by Congress as they deliberated over and enacted the DMCA --- in particular, it is a theme of the Congressional debates, repeated over and over, that the ban on ``circumvention'' devices would be narrow, would cover only devices specifically designed to grant unauthorized access, and would not cover any device with a legitimate purpose. The interpretation of the law adopted by the MPAA stands this balance on its head. The plaintiffs are asserting an absolute right to control the manufacture of {\em any} machinery which is capable of viewing their CSS-protected works, specifically including the LiViD project, whose sole purpose is in fact producing a player functionally equivalent to those already commercially available for Windows and Macintosh computer systems. And they are already using this power to restrict the options available to the general public (by making players artificially unable to view films from outside ``region 1'', the U.S. and Canada), and so to artificially restrain trade. This is not about piracy, it is about control. It should not, and cannot stand. From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 2 20:20:45 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA18871 for dvd-discuss-outgoing; Wed, 2 Aug 2000 20:20:45 -0400 Received: from emperor.hwrd1.md.home.com (cc273095-a.hwrd1.md.home.com [24.3.46.177]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id UAA18868 for ; Wed, 2 Aug 2000 20:20:44 -0400 Received: (from jfb@localhost) by emperor.hwrd1.md.home.com (8.9.3/8.9.3) id UAA18698; Wed, 2 Aug 2000 20:20:29 -0400 Date: Wed, 2 Aug 2000 20:20:29 -0400 From: Jim Bauer Message-Id: <200008030020.UAA18698@emperor.hwrd1.md.home.com> To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Authority --- some fixups. Newsgroups: local.dvd-discuss In-Reply-To: <200008022350.TAA21153@soggy-fibers.ai.mit.edu> References: <20000802182609.27472.qmail@web512.mail.yahoo.com> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu "Robert S. Thau" wrote: > >However, the ``Content Scrambling System'' supposedly ``hacked'' by ^^^^^^^^^^^^^^^^^^^^^ >the plaintiffs in this case performs no such check --- a CSS-enabled ^^^^^^^^^^^^^^^ Did you perhaps mean something else? >player will view {\em any} CSS formatted DVD without performing any >check that the user is authorized to view it. -- Jim Bauer, jfbauer@home.com From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 2 20:43:20 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA20990 for dvd-discuss-outgoing; Wed, 2 Aug 2000 20:43:20 -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 UAA20970 for ; Wed, 2 Aug 2000 20:43:19 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id ; Wed, 2 Aug 2000 17:43:24 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1D99@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] Authority --- some fixups. Date: Wed, 2 Aug 2000 17:43:17 -0700 MIME-Version: 1.0 X-Mailer: Internet Mail Service (5.5.2650.21) Content-Type: text/plain; charset="iso-8859-1" Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu The one thing I don't see in the intro is the thesis that this reading establishes a new, unexpiring, class of intellectual property which superceeds both Copyright and Patent protections. While it may be in the paper (omitted from your msg), I believe that this is the crux of the thesis and should be present in both the introduction and the summation. -- -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, August 02, 2000 4:51 PM > To: dvd-discuss@eon.law.harvard.edu > Subject: Re: [dvd-discuss] Authority --- some fixups. > > > Bryan Taylor writes: > > Good idea. If we submit it to the Copyight Offic, it might > be a good > > idea to include an introduction that goes through the > questions that we > > are trying to answer and states our thesis. > > Here's what I came up with very quickly, without enough time to do a > proper job. (The thing it's missing for that audience is a page or so > demolishing "it's piracy", which is a line they'll be trying for the > LOC even if they've abandoned it in court). > > Introduction > > The Digital Millenium Copyright Act gave copyright holders remarkable > new powers to regulate the content of their works, which have raised > concerns that the traditional balance in the law between the rights > granted to copyright holders and the public interest. These concerns > might be allayed somewhat if the copyright holders were carefully > staying within the bounds and intent of the law. However, that seems > not to be the case. In one of the first trials under the law, > Universal v. Corley (one of the so-called ``DeCSS cases''), the > copyright holders have adopted a broad, sweeping view of their powers > under the law --- far more sweeping than anything envisioned by > Congress, as they themselves described the intent of the law they > passed in their debates and their reports. Were their interpretation > to stand, it would give them an awesome degree of power over > where and > how citizens were able to access movies, and other protected content, > far in excess of what was intended by Congress, and with very > deleterious effects on the public interest. This clearly calls for > rulemaking findings which will restore some semblance of the actual > intent of the law --- findings which, as we will show, would still > leave copyright holders with a wide scope of possible measures with > which to offer legitimate protection for their work. > > Specifically, the plaintiff's case in Universal et al. v. Corley > relies on an interpetation of the Digital Millenium Copyright Act > (DMCA), specifically 17 USC 1201(a) --- a view already articulated by > their attorney, Dean Marks, in hearings for the librarian of Congress > --- which we regard as fundamentally flawed. This section of the law > provides protection for ``access control mechanisms'', which as we > shall show, was clearly intended by Congress to mean mechanisms which > perform some sort of affirmative check that a viewer is authorized to > view a particular work. Several such systems have been deployed by > the movie studios to protect their work, including one (codeveloped > with Circuit City, and marketed to consumers under the name ``Divx'') > which actually checked the authority of a particular viewer to view > works distributed on DVD disk. > > However, the ``Content Scrambling System'' supposedly ``hacked'' by > the plaintiffs in this case performs no such check --- a CSS-enabled > player will view {\em any} CSS formatted DVD without performing any > check that the user is authorized to view it. Plaintiffs claim > protection for it anyway by misreading the law to state that the > ``authority of the copyright owner'' referred to in the statute is not > a grant of authority to view any particular work, but rather authority > to implement the CSS process {\em itself} --- the authority to govern > not merely the {\em act} of access, but the permissible {\em means} of > access. Their assertion is in conflict with the text of the law, with > the legislative record of Congress enacting the law, and with > enduring, basic constitutional principles regarding intellectual > property protection. > > --------- [entire existing paper, sans intro, goes here ] ------------ > > Conclusion: > > The law regarding intellectual property protection in the United > States has always stressed a balance of interests, between, in > particular, copyright holders and the general public. This theme of > balance was kept carefully in mind by Congress as they deliberated > over and enacted the DMCA --- in particular, it is a theme of the > Congressional debates, repeated over and over, that the ban on > ``circumvention'' devices would be narrow, would cover only devices > specifically designed to grant unauthorized access, and would not > cover any device with a legitimate purpose. > > The interpretation of the law adopted by the MPAA stands this balance > on its head. The plaintiffs are asserting an absolute right to > control the manufacture of {\em any} machinery which is capable of > viewing their CSS-protected works, specifically including the LiViD > project, whose sole purpose is in fact producing a player > functionally > equivalent to those already commercially available for Windows and > Macintosh computer systems. And they are already using this power to > restrict the options available to the general public (by making > players artificially unable to view films from outside ``region 1'', > the U.S. and Canada), and so to artificially restrain trade. This is > not about piracy, it is about control. It should not, and cannot > stand. > From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 2 20:50:33 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA21589 for dvd-discuss-outgoing; Wed, 2 Aug 2000 20:50:33 -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 UAA21586 for ; Wed, 2 Aug 2000 20:50:32 -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 UAA16622 for ; Wed, 2 Aug 2000 20:50:17 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id UAA21362; Wed, 2 Aug 2000 20:50:16 -0400 (EDT) Date: Wed, 2 Aug 2000 20:50:16 -0400 (EDT) Message-Id: <200008030050.UAA21362@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Authority --- some fixups. Newsgroups: local.dvd-discuss In-Reply-To: <200008030020.UAA18698@emperor.hwrd1.md.home.com> References: <20000802182609.27472.qmail@web512.mail.yahoo.com> <200008022350.TAA21153@soggy-fibers.ai.mit.edu> <200008030020.UAA18698@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: > "Robert S. Thau" wrote: > > > >However, the ``Content Scrambling System'' supposedly ``hacked'' by > ^^^^^^^^^^^^^^^^^^^^^ > >the plaintiffs in this case performs no such check --- a CSS-enabled > ^^^^^^^^^^^^^^^ > > Did you perhaps mean something else? Yes, thanks. Ouch. rst From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 2 20:55:04 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA22006 for dvd-discuss-outgoing; Wed, 2 Aug 2000 20:55:04 -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 UAA22002 for ; Wed, 2 Aug 2000 20:55:03 -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 UAA16942 for ; Wed, 2 Aug 2000 20:54:49 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id UAA21379; Wed, 2 Aug 2000 20:54:47 -0400 (EDT) Date: Wed, 2 Aug 2000 20:54:47 -0400 (EDT) Message-Id: <200008030054.UAA21379@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: RE: [dvd-discuss] Authority --- some fixups. In-Reply-To: <5A8391CA2D9ED311AFAA080009D982B10B1D99@mail2.onetouch.com> References: <5A8391CA2D9ED311AFAA080009D982B10B1D99@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 one thing I don't see in the intro is the thesis that > this reading establishes a new, unexpiring, class of intellectual > property which superceeds both Copyright and Patent protections. It's there only by implication, in the reference to "basic ... Constitutional principles". Suggested wording? rst From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 2 21:30:38 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA22973 for dvd-discuss-outgoing; Wed, 2 Aug 2000 21:30:38 -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 VAA22969 for ; Wed, 2 Aug 2000 21:30:36 -0400 Received: from localhost (galt@localhost) by inconnu.isu.edu (8.9.3/8.9.3) with ESMTP id TAA16073 for ; Wed, 2 Aug 2000 19:30:21 -0600 Date: Wed, 2 Aug 2000 19:30:21 -0600 (MDT) From: John Galt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] copyleft subpoenad In-Reply-To: <20000802211453.A14626@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 A non-distinction anymore, the MPAA petitioned to add the DVDCCA as a Plaintiff in NY...:) On Wed, 2 Aug 2000, Sham Gardner wrote: > On Wed, Aug 02, 2000 at 12:58:31PM -0600, John Galt wrote: > > > > This does set up a "slippery slope" arguement: The MPAA has consistently > > tried to apply the proceedings to non-parties, > > According a slashdot posting that appears to be from one of the Copyleft > people, this is part of the California case, i.e. it's the DVDCCA, not the > MPAA. > > Sham > > -- The Internet must be a medium for it is neither Rare nor Well done! John Galt From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 2 21:57:47 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA24542 for dvd-discuss-outgoing; Wed, 2 Aug 2000 21:57:47 -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 VAA24539 for ; Wed, 2 Aug 2000 21:57:35 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id WAA21586 for dvd-discuss@eon.law.harvard.edu; Wed, 2 Aug 2000 22:02:07 -0400 Date: Wed, 2 Aug 2000 22:02:02 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] the definition of 'Circumvention' Message-ID: <20000802220202.H21208@eldritchpress.org> References: <20000802043035.98023.qmail@hotmail.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <20000802043035.98023.qmail@hotmail.com>; from haceaton@hotmail.com on Wed, Aug 02, 2000 at 12:30:34AM -0400 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Wed, Aug 02, 2000 at 12:30:34AM -0400, Harold Eaton wrote: > ... > With your reading, a person charged under 1201 (a) (1) (A) need only claim > that she didn't do the decryption, the device did. Since 1201 (a) (2) (A) > clearly describes (according to you) devices which perform such acts, this a > legitimate defense since 1201 (a) (1) (A) forbids only persons and not > devices from performing such acts. As a practical matter, persons will > never decrypt an encrypted work, they will always leave that to devices. I agree with you. But strangely this may be exactly what the MPAA wanted in the DMCA, and what Congress thought it passed. They wanted to ban "black boxes" and so the definition had to be ambiguous to try to include them but not acts by people that might be authorized by fair use or first sale or other rights. This was satisfactory as long as technically it was difficult enough to get around by either devices or persons. But it would not be satisfactory to enforce under 1201 against devices (or people) as soon as DeCSS was released. Your point can be realized as soon as it becomes apparent that some genius might actually be able to do the decryption in her head. Surely this would just as much circumvention as would a black box device. Whether this is technically possible or not is not a legal question. It is a factual one. For example, Mozart as a child was able to listen to a long mass and later could write out the notes onto paper from his head. No device needed. Maybe a future genius could do that. It would only be criminal if he did not have authorization, for example tried to sell copies of it. From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 2 22:44:17 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA25219 for dvd-discuss-outgoing; Wed, 2 Aug 2000 22:44:17 -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 WAA25216 for ; Wed, 2 Aug 2000 22:44:04 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id WAA21666 for dvd-discuss@eon.law.harvard.edu; Wed, 2 Aug 2000 22:48:37 -0400 Date: Wed, 2 Aug 2000 22:48:32 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] copying impossible with a player key? Message-ID: <20000802224832.I21208@eldritchpress.org> References: <8m9tr3$364$1@blowfish.isaac.cs.berkeley.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: ; from mingo@elte.hu on Wed, Aug 02, 2000 at 10:56:20PM +0200 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Wed, Aug 02, 2000 at 10:56:20PM +0200, Ingo Molnar wrote: > > On 2 Aug 2000, David A. Wagner wrote: > > > > 2 it appears also that one cannot copy the copyrighted works > > > 3 protected by CSS even with a player key. > > > > > > this last sentence i believe not true, because [...] > > > > You are correct. Copying is possible, with or without a player key. > > (Without a player key, bit-for-bit copying of the encrypted content > > suffices.) > > > > But 1201(a) is about access, not copying (right?), so I'm not sure why > > this is relevant to the case. > > because Kaplan appears to have the sense that DeCSS uniquely enables > copying of works that was not possible before. (and his injunction is > based on that as well) Which is not true. I believe you have hit on an important point. Access is really about authentication. In order to play a DVD (or to circumvent) one must gain authorized access, by means of using some program on the player keys and the title key on the disc. That provides the access and the whole requirement of 1201(a). The fact that a device could be made to do copying, with or without access, and with or without decryption, doesn't seem to be included if one looks only at the question of access as authorized authentication. Because using any of CSS, Xing, DeCSS uses the same keys and the same method of access control. One must have a valid DVD and not a counterfeit--but the counterfeit one has to be determined by some means in the access control, and it can't be. On the other hand, copying or descrambling or decryption seems to be what the MPAA hoped to avert, and Congress agreed to ban, because it is obviously copyright infringement or not without the DMCA special provisions. But of course they failed to indicate how to interpret descrambling in the obviously authorized sense of decoding the MPEG2 files, for example. So they can't interpret the law per devices a priori, without consideration of actual use, and the rest of the criminal clauses of 1201. Plaintiffs have continually confused the authentication part of access control with the encryption and scrambling of content. I agree that the above statement by Kaplan is factually wrong. One can copy the files with authorization, I claim, if it is necessary to do so for some fair use. For example, to play the disc on a Linux player. Or, for example, to save the files to a hard disk and edit them so as to make a quotation in a lecture on fair use in law school. The authorization doesn't have to come from anybody--it is already present and given by the Constitution in the copyright clause. If "authorization" means both access control and decryption control, then it seems the only way plaintiffs can control decryption is to control completely the player market and the host computers, so as to ban any possible steps to do the copying, for example rewriting Windows to make it impossible to use Windows copy facilities to copy the VOB files to hard disk (without using DeCSS). Then it seems "authorization" has to come with some second sale grant of authority before one can legally use a product, and we have seen no such license for the user. Jim has pointed out that it might be possible to restrict the ban on unauthorized copying to only decoded files, but I am not sure this is correct. And Judge Kaplan seems to have been impressed that DeCSS as written by Johansen did contain a copying facility built into the program. This needs to be explained fully to him. The main problem still is that a device can be used by a person in more than one way, and authority can be given to a person to use as intended or not. But it is hard to see how a device could a priori have been given authority. It's not the keys that authorize, but the permission to use the keys. And so we still have the problems of fair use and antitrust in any interpretation of 1201. It might be more reasonable to conclude the law is simply too contradictory to enforce. From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 2 23:24:30 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA26722 for dvd-discuss-outgoing; Wed, 2 Aug 2000 23:24:30 -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 XAA26719 for ; Wed, 2 Aug 2000 23:24:29 -0400 From: Consilgere@cs.com Received: from Consilgere@cs.com by csimo01.mx.aol.com (mail_out_v27.12.) id x.a2.808a166 (8512) for ; Wed, 2 Aug 2000 23:23:45 -0400 (EDT) Message-ID: Date: Wed, 2 Aug 2000 23:23:45 EDT Subject: Re: [dvd-discuss] first amendment defense 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, here we go: The state's power is legitimate. You dont like it, go revolt. I'll ignore the CIA and NSA statements. As for the FBI, they can't legitimately use Carnivore without a warrant. Humans don't get first amendment rights. Their speech does. Talking dogs would get first amendment rights. From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 2 23:28:22 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA27421 for dvd-discuss-outgoing; Wed, 2 Aug 2000 23:28:22 -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 XAA27418 for ; Wed, 2 Aug 2000 23:28:21 -0400 From: Consilgere@cs.com Received: from Consilgere@cs.com by csimo02.mx.aol.com (mail_out_v27.12.) id x.a2.808a168 (8512) for ; Wed, 2 Aug 2000 23:27:26 -0400 (EDT) Message-ID: Date: Wed, 2 Aug 2000 23:27:25 EDT Subject: Re: [dvd-discuss] First Amendment defense 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 A textbook is. I dont see what that has to do with source code in general. From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 2 23:30:52 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA27620 for dvd-discuss-outgoing; Wed, 2 Aug 2000 23:30:52 -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 XAA27617 for ; Wed, 2 Aug 2000 23:30:51 -0400 From: Consilgere@cs.com Received: from Consilgere@cs.com by csimo02.mx.aol.com (mail_out_v27.12.) id x.d.83819b2 (8512) for ; Wed, 2 Aug 2000 23:30:03 -0400 (EDT) Message-ID: Date: Wed, 2 Aug 2000 23:30:02 EDT Subject: Re: [dvd-discuss] first amendment defense 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 A set of instructions shouldn't fall under a copyright. It should fall under a patent. From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 2 23:35:23 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA28114 for dvd-discuss-outgoing; Wed, 2 Aug 2000 23:35:23 -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 XAA28111 for ; Wed, 2 Aug 2000 23:35:18 -0400 Received: from localhost (localhost [[UNIX: localhost]]) by rjmconsulting.com (8.9.3/8.9.3) id UAA01821 for dvd-discuss@eon.law.harvard.edu; Wed, 2 Aug 2000 20:46:12 -0700 From: Russell (James) Miller To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] first amendment defense Date: Wed, 2 Aug 2000 20:44:39 -0700 X-Mailer: KMail [version 1.0.29.2] Content-Type: text/plain References: In-Reply-To: MIME-Version: 1.0 Message-Id: <0008022046100M.16113@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 Wed, 02 Aug 2000, you wrote: > Humans don't get first amendment rights. Their speech does. Talking dogs > would get first amendment rights. Actually, they'd probably get dissected. I doubt any talking animal would be given the same rights we have. I doubt it very much. We as a species are wayyyyyy to self absorbed to even give them the time of day. So... No. I don't think so. Human speech gets first amendment rights and that's as far as I'd go. --james (Russell) -- Russell (James) 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 Aug 2 23:40:59 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA28254 for dvd-discuss-outgoing; Wed, 2 Aug 2000 23:40:59 -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 XAA28251 for ; Wed, 2 Aug 2000 23:40:44 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id XAA21772 for dvd-discuss@eon.law.harvard.edu; Wed, 2 Aug 2000 23:45:17 -0400 Date: Wed, 2 Aug 2000 23:45:12 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] A useful document for circumvention brief Message-ID: <20000802234512.L21208@eldritchpress.org> References: <000c01bffccd$c305dda0$87ce0593@ia.nsc.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <000c01bffccd$c305dda0$87ce0593@ia.nsc.com>; from john.zulauf@ia.nsc.com on Wed, Aug 02, 2000 at 04:05:26PM -0600 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Wed, Aug 02, 2000 at 04:05:26PM -0600, John Zulauf wrote: > On Wed, 2 Aug 2000 16:03:36 -0400 (EDT) Jeremy A Erwin referenced: > > > http://www.dvdcca.org/4centity/data/tech/cpsa/cpsa081.pdf > Without requoting parts of this text it seems evident that the fundamental terms "access control" and "authorized" and "encryption" are all mixed up (in the passive voice) without any explanation of what they mean, who is to authorize, whether there is or is not a contractual obligation, and if so whether the end user is licensed or not, or what license applies, and a host of other confusions that we have encountered time and again in our discussion here. Even the DMCA date is wrong. In order to build a "compliant" player or component of any PC or digital entertainment system apparently one has to agree to enforce these "axioms". Even if the content provider (copyright holder of content) wishes to release without encryption, this document specifies what must happen with watermarks and other means of usage controls, having nothing to do with either the content provider nor the rights of the user. Again, it is one of those technology nightmares that Judge Kaplan must be having right at the moment. One can only wonder what they will come up with next unless this ludicrous process is brought to a halt. From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 2 23:46:03 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA28482 for dvd-discuss-outgoing; Wed, 2 Aug 2000 23:46:03 -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 XAA28479 for ; Wed, 2 Aug 2000 23:46:01 -0400 Received: by waltz.rahul.net (Postfix, from userid 4001) id AF94499C8A; Wed, 2 Aug 2000 20:45:45 -0700 (PDT) Received: from localhost (localhost [127.0.0.1]) by waltz.rahul.net (Postfix) with ESMTP id 91B53938C0 for ; Wed, 2 Aug 2000 20:45:45 -0700 (PDT) Date: Wed, 2 Aug 2000 20:45:45 -0700 (PDT) From: Ken Arromdee To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Authority --- some fixups. In-Reply-To: <200008022350.TAA21153@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, 2 Aug 2000, Robert S. Thau wrote: > > Good idea. If we submit it to the Copyight Offic, it might be a good > > idea to include an introduction that goes through the questions that we > > are trying to answer and states our thesis. > Here's what I came up with very quickly, without enough time to do a > proper job. (The thing it's missing for that audience is a page or so > demolishing "it's piracy", which is a line they'll be trying for the > LOC even if they've abandoned it in court). In which context is this being submitted to the copyright office? IIRC, the current requests for comments are specifically for how the DMCA impacts on fair use and aren't a general everything-about-the-DMCA... From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 2 23:53:03 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA30235 for dvd-discuss-outgoing; Wed, 2 Aug 2000 23:53:03 -0400 Received: from tbird.iworld.com ([63.236.72.237]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id XAA30232 for ; Wed, 2 Aug 2000 23:53:03 -0400 Received: (from nobody@localhost) by tbird.iworld.com (8.10.2/8.10.2) id e733rEo21625; Wed, 2 Aug 2000 23:53:14 -0400 Date: Wed, 2 Aug 2000 23:53:14 -0400 Message-Id: <200008030353.e733rEo21625@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] first amendment defense Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Consilgere@cs.com wrote: >Ok, here we go: > >The state's power is legitimate. You dont like it, go revolt. TRhe state's power is theembodiment of the people. Read the Constitution. >I'll ignore the CIA and NSA statements. As for the FBI, they can't >legitimately use Carnivore without a warrant. They can search my car by asking to see my spare tire. That is a law in the books (NY I think.) >Humans don't get first amendment rights. Their speech does. Talking dogs >would get first amendment rights. Are you crazy!? Wait so if I don't know morse code I can't write dit dah dah dit dit? I have a right to speak. You're incredible. 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 Wed Aug 2 23:56:13 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA30568 for dvd-discuss-outgoing; Wed, 2 Aug 2000 23:56:13 -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 XAA30565 for ; Wed, 2 Aug 2000 23:55:58 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id AAA21835 for dvd-discuss@eon.law.harvard.edu; Thu, 3 Aug 2000 00:00:31 -0400 Date: Thu, 3 Aug 2000 00:00:26 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] the definition of 'Circumvention' Message-ID: <20000803000026.M21208@eldritchpress.org> References: <20000802204012.11571.qmail@web509.mail.yahoo.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <20000802204012.11571.qmail@web509.mail.yahoo.com>; from bryan_w_taylor@yahoo.com on Wed, Aug 02, 2000 at 01:40:12PM -0700 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Wed, Aug 02, 2000 at 01:40:12PM -0700, Bryan Taylor wrote: > > ...Nimmer, who > cites it and simultaneously confirms that there must be tangible > evidence of authorization from the copyight holder to extend authority > beyond that which is statutorily transfered at First Sale: > > >From "The Metamorphosis of Contract into Expand": > http://eon.law.harvard.edu/openlaw/DVD/research/metamorphosis.html > >.... > Under existing copyright law, the manufacturer's 10-user limitation is > enforceable regardless of whether state law treats the above notice as > part of a binding bilateral contract. n54 A copyright owner may grant a > non-exclusive license by any words or conduct tending to show such a > license. So can we turn this around and say that in absence of a license "by any words or conduct" the first sale allows one copy, whether in RAM or on disk, of a DVD, and this applies both to Xing and to LiViD (and DeCSS)? From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 2 23:58:38 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA30671 for dvd-discuss-outgoing; Wed, 2 Aug 2000 23:58:38 -0400 Received: from tbird.iworld.com ([63.236.72.237]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id XAA30668 for ; Wed, 2 Aug 2000 23:58:37 -0400 Received: (from nobody@localhost) by tbird.iworld.com (8.10.2/8.10.2) id e733wSk22053; Wed, 2 Aug 2000 23:58:28 -0400 Date: Wed, 2 Aug 2000 23:58:28 -0400 Message-Id: <200008030358.e733wSk22053@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] Source code IS a text book see Touretzky Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Consilgere@cs.com wrote: Dude this just did it. YOu are procmailed off into /dev/null on my system. Either you refuse to to read counter arguments and articles or you're simply trolling this list. >A textbook is. I dont see what that has to do with source code in general. Whatever. 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 Thu Aug 3 00:03:21 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA30801 for dvd-discuss-outgoing; Thu, 3 Aug 2000 00:03:21 -0400 Received: from tbird.iworld.com ([63.236.72.237]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id AAA30798 for ; Thu, 3 Aug 2000 00:03:20 -0400 Received: (from nobody@localhost) by tbird.iworld.com (8.10.2/8.10.2) id e73436O22442; Thu, 3 Aug 2000 00:03:06 -0400 Date: Thu, 3 Aug 2000 00:03:06 -0400 Message-Id: <200008030403.e73436O22442@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] first amendment defense Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Consilgere@cs.com wrote: >A set of instructions shouldn't fall under a copyright. It should fall under >a patent. Excuse me? A set of instructions does not make a machine. A set of components makes a machine. Source is not a set of components. It is not a set of instructions. It is a description. 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 Thu Aug 3 00:09:20 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA31212 for dvd-discuss-outgoing; Thu, 3 Aug 2000 00:09:20 -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 AAA31209 for ; Thu, 3 Aug 2000 00:09:09 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id AAA21856 for dvd-discuss@eon.law.harvard.edu; Thu, 3 Aug 2000 00:13:42 -0400 Date: Thu, 3 Aug 2000 00:13:37 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] the definition of 'Circumvention' Message-ID: <20000803001337.N21208@eldritchpress.org> References: <5A8391CA2D9ED311AFAA080009D982B10B1D93@mail2.onetouch.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <5A8391CA2D9ED311AFAA080009D982B10B1D93@mail2.onetouch.com>; from hartman@onetouch.com on Wed, Aug 02, 2000 at 11:04:28AM -0700 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Wed, Aug 02, 2000 at 11:04:28AM -0700, Richard Hartman wrote: > > > -----Original Message----- > > From: Jim Taylor [mailto:jtfrog@usa.net] > ... > > > > In that vein... > > Richard Hartman, on Tuesday, August 01, 2000 11:00 AM, wrote > > > > > >In order to determine that circumvention has occured, an > > >infringement must occur. Otherwise the decryption was > > >legimitate (i.e. authorized -- perhaps by fair use) access > > >and not circumvention. > > > > That seems reasonable, although I'm not sure the DMCA supports that > > viewpoint. Its definition of circumvention rests entirely on > > authority. > > Therefore if you don't infringe (e.g., you make a fair-use > > copy), but you > > don't have authority, you have circumvented. It allows > > circumvention for > > fair use, but still seems to imply that it's circumvention. > > > > Interesting. I'm not sure I see that, but IANAL. So the > DCMA (by your reading) > a) specifically allows for fair use, but > b) terms access authorized by the fair use clause but not > the copyright owner as "circumvention" > c) bans all devices that perform "circumvention" > > This again would be an internal contradiction between 'a' and 'c' that > would (to me) make the law unenforcable. (I say "again" because I presented > a different internal contradiction on this list recently). This > contradiction > could be resolved by addressing 'b' and changing the terminology assigned to > access authorized by fair use. Another way to look at (b) is to ask what is the situation where the copyright owner of content tries to authorize circumvention or a process of circumvention, or use of the content other than what the DVD-CCA licenses. In that case you don't have to get into factual issues, though there has already been testimony that DVD-CCA would not issue a license in that case. (If the copyright holder authorized DeCSS to be used, then why would it not be legal for the user to obtain it somehow? The law, but not the technology, could still make it illegal to sell copies of the content.) And....just to cover all the bases....if the "authority" doesn't mean those reasonable interpretations, then the "authority" has to come from the DVD-CCA. And that has to raise antitrust tying and misuse of copyright in restraint of trade. But I think on the whole this contradiction was deliberate and cannot be avoided by any reasonable or even unconstitutional interpretation. The DVD-CCA should sue Congress for not passing the bill they bought. From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 3 00:10:36 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA31338 for dvd-discuss-outgoing; Thu, 3 Aug 2000 00:10:36 -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 AAA31332 for ; Thu, 3 Aug 2000 00:10:35 -0400 Received: from ip25.bedford3.ma.pub-ip.psi.net ([38.32.11.25]) by relay21.smtp.psi.net with smtp (Exim 3.13 #3) id 13KCKp-00022J-00 for dvd-discuss@eon.law.harvard.edu; Thu, 03 Aug 2000 00:10:20 -0400 From: Ron Gustavson To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] A useful document for circumvention brief Date: Thu, 03 Aug 2000 00:04:03 -0400 Message-ID: <3nrhosc4sjjgbf0hcuo0feo2uveue7p1n7@4ax.com> References: <000c01bffccd$c305dda0$87ce0593@ia.nsc.com> <20000802234512.L21208@eldritchpress.org> In-Reply-To: <20000802234512.L21208@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 AAA31336 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Wed, 2 Aug 2000 23:45:12 -0400, Eric Eldred wrote: >Again, it is one of those technology nightmares that >Judge Kaplan must be having right at the moment. One >can only wonder what they will come up with next unless >this ludicrous process is brought to a halt. The good news is that by the time all this is ready for prime time, the talent will have left the barn. The money in Hollywood flows to the talent, not the other way around. Once content producers (and their agents) have the means to apply their own DRM, it's all over for the cartels. Taking a cue from the software world, it's likely that the DRM that succeeds will allow both resale and fair use. In a way, it's probably fine that these corporations are spending their fiscal quarters pissing money away on hopeless schemes and laws. Otherwise, they might come up with a DRM that was user-friendly and would actually work. __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 3 00:25:15 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA32263 for dvd-discuss-outgoing; Thu, 3 Aug 2000 00:25:15 -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 AAA32260 for ; Thu, 3 Aug 2000 00:25:14 -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 XAA12132 for ; Wed, 2 Aug 2000 23:24:40 -0500 Message-ID: <3988F25C.E4D116A8@mninter.net> Date: Wed, 02 Aug 2000 23:17:32 -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] first amendment defense References: <0008022046100M.16113@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 "Russell (James) Miller" wrote: > I doubt any talking animal would be given the same rights we have. I > doubt it very much. We as a species are wayyyyyy to self absorbed to > even give them the time of day. So... No. I don't think so. Human > speech gets first amendment rights and that's as far as I'd go. > > --james (Russell) I can just see the guvmint cracking down a revolt led by Lancelot Link and Mr. Ed because "they don't have first amendment rights." It's good for starters, anyhow. -- moseng@mninter.net I use PGP 6.5.3 -- http://www.underwhelm.org/pgp From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 3 00:35:37 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA00316 for dvd-discuss-outgoing; Thu, 3 Aug 2000 00:35:37 -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 AAA00313 for ; Thu, 3 Aug 2000 00:35:25 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id AAA21887 for dvd-discuss@eon.law.harvard.edu; Thu, 3 Aug 2000 00:39:59 -0400 Date: Thu, 3 Aug 2000 00:39:54 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] the definition of 'Circumvention' Message-ID: <20000803003954.O21208@eldritchpress.org> References: <20000731232747.6603.qmail@web512.mail.yahoo.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: ; from jtfrog@usa.net on Tue, Aug 01, 2000 at 07:20:36PM -0700 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, Aug 01, 2000 at 07:20:36PM -0700, Jim Taylor wrote: > Bryan Taylor, on Monday, July 31, 2000 4:28 PM, wrote >... > But they are distinguishable by a means recognized by the DMCA. One is > authorized, one isn't. The act is the same, the authorization is absent. > > >> Most descramblers require keys to descramble. > >> Taking away the key and breaking the descrambler doesn't "prove" that > > > >> it's not a descrambler. > > > >Are you saying that if the Xing key was removed from DeCSS that it > >would remain a descrambler? > > No, I'm saying that taking the key away so that it can no longer descramble > makes it a broken descrambler, but does not prove that it is not a software > device intended to descramble. All right, we still have the problem of functionally equivalent programs of which one is somehow authorized and another not, by some means. The appropriate way of determining this under 1201 seems to be (1) "access control," the distribution of title and player keys, and (2) authority granted for use, by first sale from the content copyright holder. And since those are also the same, it is hard to know how to distinguish the cases other than one being licensed by DVD-CCA and the other not. And it is even harder to see how this pertains to copyright law. .... > designed, key exchange over a bus was obfuscated, and so on. I do maintain > that it doesn't matter if something else provides the keys. It doesn't > really matter where the key comes from, as long as the copyright holder has > made reasonable efforts to give the key only to parties making authorized > devices. This is part of what establishes the authority of a device. But this should apply to a trade secret case and not copyright. Copyright should encourage publication and not protect trade secrets in published material. It's not the case that the key is copyrighted nor that it can only be used for illegal use. > As always, the bottom line comes back down to "does DeCSS circumvent?" The > Xing player doesn't circumvent, so why would DeCSS? The difference is that > the Xing player is designed to play (a legitimate function), while DeCSS.exe > is designed to decrypt and copy to a hard drive. If it can be shown that > this is also a legitimate function, then DeCSS is ok. But the MPAA of course > claims that the latter is not a legitimate function. If Judge Kaplan is impressed that DeCSS deliberately included a copying function and this would never be authorized by copyright holder, then he might ban it. But it would have to be a careful ruling to prevent appeals on all the grounds we have stated, and on the other hand it would have to somehow preserve the confusion by MPAA that would try to extend the ban to LiViD. If somehow the case turns out this way then maybe we should put out a CSS encrypted DVD ourselves with the outright grant of permission and license to the user to use DeCSS to play and copy it. I propose that FSF issue such a disc under GPL! Then we can have a suit by DVD-CCA against the FSF, and that one might clarify just what the law really should be. From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 3 00:39:25 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA00388 for dvd-discuss-outgoing; Thu, 3 Aug 2000 00:39:25 -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 AAA00385 for ; Thu, 3 Aug 2000 00:39:24 -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 XAA13245 for ; Wed, 2 Aug 2000 23:38:51 -0500 Message-ID: <3988F5AA.B64D475F@mninter.net> Date: Wed, 02 Aug 2000 23:31:38 -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] A useful document for circumvention brief References: <000c01bffccd$c305dda0$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: [...] > In any case, where do they get off > telling me what I can do with the analog output of my stereo? You actually believe they'll sell you analog outputs on your stereo five years from now? "Analog" will be writen out of the lexicon, replaced, perhaps, with "circumvention technology." -- moseng@mninter.net I use PGP 6.5.3 -- http://www.underwhelm.org/pgp From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 3 01:04:27 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id BAA03544 for dvd-discuss-outgoing; Thu, 3 Aug 2000 01:04:27 -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 BAA03541 for ; Thu, 3 Aug 2000 01:04:26 -0400 From: Consilgere@cs.com Received: from Consilgere@cs.com by csimo02.mx.aol.com (mail_out_v27.12.) id x.b6.8bf2e10 (8512) for ; Thu, 3 Aug 2000 01:03:38 -0400 (EDT) Message-ID: Date: Thu, 3 Aug 2000 01:03:37 EDT Subject: Re: [dvd-discuss] first amendment defense 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 A set of instructions defines a process. processes are patented. From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 3 01:06:07 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id BAA03652 for dvd-discuss-outgoing; Thu, 3 Aug 2000 01:06:07 -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 BAA03649 for ; Thu, 3 Aug 2000 01:06:07 -0400 From: Consilgere@cs.com Received: from Consilgere@cs.com by csimo01.mx.aol.com (mail_out_v27.12.) id x.29.87534a3 (8512) for ; Thu, 3 Aug 2000 01:05:17 -0400 (EDT) Message-ID: <29.87534a3.26ba578d@cs.com> Date: Thu, 3 Aug 2000 01:05:17 EDT Subject: Re: [dvd-discuss] Source code IS a text book see Touretzky 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 In case my feelings on the matter haven't been made clear, I dont agree with Touretzky. From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 3 01:20:41 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id BAA04233 for dvd-discuss-outgoing; Thu, 3 Aug 2000 01:20:41 -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 BAA04230 for ; Thu, 3 Aug 2000 01:20:40 -0400 From: Consilgere@cs.com Received: from Consilgere@cs.com by csimo01.mx.aol.com (mail_out_v27.12.) id x.e.6f659c (8512) for ; Thu, 3 Aug 2000 01:19:53 -0400 (EDT) Message-ID: Date: Thu, 3 Aug 2000 01:19:52 EDT Subject: Re: [dvd-discuss] first amendment defense 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 You can write dit dah dah dit dit... but the speech is what's being protected. Who speaks it is irrelevant. Im no expert in NY law. Im not from there. But that doesnt change the fact that you need a warrant to use Carnivore. And on top of that, the ISP its attached to has to request its use. I couldnt tell you if that's policy or law, but its a minor distinction. It has all the same safeguards as ordinary, run of the mill wiretaps. I've read the constitution. Like alot of people on this list im assuming, i've also studied political science. The state's power is legitimate as long as the people allow it. If we wanted to, we could decide we didn't want the Constitution anymore, and it would become an illegitimate source of power. Why anyone would do that is beyond me, but nonetheless, it could be done. From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 3 02:16:39 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id CAA05000 for dvd-discuss-outgoing; Thu, 3 Aug 2000 02:16:39 -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 CAA04997 for ; Thu, 3 Aug 2000 02:16:27 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id CAA21950 for dvd-discuss@eon.law.harvard.edu; Thu, 3 Aug 2000 02:21:01 -0400 Date: Thu, 3 Aug 2000 02:20:56 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] copyleft again Message-ID: <20000803022056.A21920@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 'Sugarman maintains that this is a question of trade secrets, not of free speech. "If someone put Coca Cola's formula on a T-shirt, does that all of a sudden allow a First Amendment infringement of a trade secret?" he asked.' Lawyers are paid to say this? I've seen a supposed Coca-Cola formula, arrived at through reverse engineering, printed in a couple of books. I never saw a suit from Coke (tm) on this issue, nor any response that publication was protected by the First Amendment. Instead, the company is smart enough to lock up the formula in a safe and allow access only to a few trusted employees. That way they never have to confirm or deny any formula as being the same as their secret. I would not be surprised if the company periodically leaked various "secret" formulas to confuse competitors. No doubt such publication has not caused many private citizens to try to make their own Coca-Cola or start competing companies. Anyway, they have some sort of practical monopoly on decocainized coca leaves and extract, I think. But thanks for telling me that DeCSS is accurate, DVD-CCA. Now I know where to buy the right T-shirt. And copyleft could never have afforded all the free advertising they are getting. From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 3 02:27:16 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id CAA05262 for dvd-discuss-outgoing; Thu, 3 Aug 2000 02:27:16 -0400 Received: from tbird.iworld.com ([63.236.72.237]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id CAA05258 for ; Thu, 3 Aug 2000 02:27:15 -0400 Received: (from nobody@localhost) by tbird.iworld.com (8.10.2/8.10.2) id e736R6o01108; Thu, 3 Aug 2000 02:27:06 -0400 Date: Thu, 3 Aug 2000 02:27:06 -0400 Message-Id: <200008030627.e736R6o01108@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] Source code IS a text book see Touretzky Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Consilgere@cs.com wrote: >In case my feelings on the matter haven't been made clear, I dont agree with >Touretzky. Obviously you've never built a project without showing people portions of it some of which not be legal size or weight or may be sharp because they're not ready. Or in some ways may have parts that can cause damage as in beta software. I'm speaking of beta binaries of which source is available for discussion. I'm really sorry I can't take you seriously. 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 Thu Aug 3 02:34:06 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id CAA05551 for dvd-discuss-outgoing; Thu, 3 Aug 2000 02:34:06 -0400 Received: from tbird.iworld.com ([63.236.72.237]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id CAA05548 for ; Thu, 3 Aug 2000 02:34:05 -0400 Received: (from nobody@localhost) by tbird.iworld.com (8.10.2/8.10.2) id e736XuD01772; Thu, 3 Aug 2000 02:33:56 -0400 Date: Thu, 3 Aug 2000 02:33:56 -0400 Message-Id: <200008030633.e736XuD01772@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] first amendment defense Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Consilgere@cs.com wrote: >A set of instructions defines a process. processes are patented. They can also describe contexts built around a process. Like the debugging bits, or the sprinkling of variable traces, or the comments. Comments are not useful without code. Dissussion cannot happen purely in comments. This is a comment: /* comment */ Is that an instruction or speech? How about this? /** comment? **/ That comment actually serves a function as clearly marked instructions for the documentation generator yet it says nothing useful to the program. And you wonder why people freak out at your statements? 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 Thu Aug 3 02:50:00 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id CAA05789 for dvd-discuss-outgoing; Thu, 3 Aug 2000 02:50:00 -0400 Received: from tbird.iworld.com ([63.236.72.237]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id CAA05786 for ; Thu, 3 Aug 2000 02:49:58 -0400 Received: (from nobody@localhost) by tbird.iworld.com (8.10.2/8.10.2) id e736nn003030; Thu, 3 Aug 2000 02:49:49 -0400 Date: Thu, 3 Aug 2000 02:49:49 -0400 Message-Id: <200008030649.e736nn003030@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 useful document for circumvention brief Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Chris Moseng wrote: >John Zulauf wrote: > >[...] >> In any case, where do they get off >> telling me what I can do with the analog output of my stereo? > >You actually believe they'll sell you analog outputs on your stereo five >years from now? "Analog" will be writen out of the lexicon, replaced, >perhaps, with "circumvention technology." Just tie a resin coated string to the speaker and the input of a rubber duck looking device which feeds into the protected recorder. >-- >moseng@mninter.net >I use PGP 6.5.3 -- http://www.underwhelm.org/pgp 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 Thu Aug 3 03:11:37 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id DAA06017 for dvd-discuss-outgoing; Thu, 3 Aug 2000 03:11:37 -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 DAA06014 for ; Thu, 3 Aug 2000 03:11:35 -0400 Received: from schoen by zork.zork.net with local (Exim 3.12 #1 (Debian)) id 13KFA0-0007Ow-00; Thu, 03 Aug 2000 00:11:20 -0700 Date: Thu, 3 Aug 2000 00:11:20 -0700 From: Seth David Schoen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] the definition of 'Circumvention' Message-ID: <20000803001120.Z27223@zork.net> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <20000731232747.6603.qmail@web512.mail.yahoo.com> <20000803003954.O21208@eldritchpress.org> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0.1i In-Reply-To: <20000803003954.O21208@eldritchpress.org>; from eldred@eldritchpress.org on Thu, Aug 03, 2000 at 12:39:54AM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Eric Eldred writes: > If somehow the case turns out this way then maybe we should put > out a CSS encrypted DVD ourselves with the outright grant of > permission and license to the user to use DeCSS to play and > copy it. I propose that FSF issue such a disc under GPL! > Then we can have a suit by DVD-CCA against the FSF, and that > one might clarify just what the law really should be. This has been proposed before. But nobody has seen the CSS license for disc manufacturers. Few people have seen the contracts between copyright holders and disc manufacturers. One of these contracts might explicity say that the copyright holder authorizes playback of these particular copies on all DVD CCA licensed players, and no other players. So you may not actually be able to do this under whatever CSS licenses may be. Of course, now that the CSS algorithm and player keys are known... :-) -- 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 Aug 3 03:27:27 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id DAA06214 for dvd-discuss-outgoing; Thu, 3 Aug 2000 03:27:27 -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 DAA06211 for ; Thu, 3 Aug 2000 03:27:26 -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 DAA10199 for ; Thu, 3 Aug 2000 03:27:12 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id DAA22578; Thu, 3 Aug 2000 03:27:11 -0400 (EDT) Date: Thu, 3 Aug 2000 03:27:11 -0400 (EDT) Message-Id: <200008030727.DAA22578@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] A useful document for circumvention brief In-Reply-To: <20000802234512.L21208@eldritchpress.org> References: <000c01bffccd$c305dda0$87ce0593@ia.nsc.com> <20000802234512.L21208@eldritchpress.org> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Eric Eldred writes: > Without requoting parts of this text it seems evident that > the fundamental terms "access control" and "authorized" > and "encryption" are all mixed up (in the passive voice) > without any explanation of what they mean, who is to > authorize, whether there is or is not a contractual > obligation, and if so whether the end user is licensed > or not, or what license applies, and a host of other > confusions that we have encountered time and again in > our discussion here. Even the DMCA date is wrong. FWIW, this is why I thought it was worth spending time in my authentication paper to blow up the assumption which the plaintiffs are clearly trying to sneak by in Universal v. Corley that "access control" and "encryption" are somehow synonymous... rst From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 3 04:12:42 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id EAA06777 for dvd-discuss-outgoing; Thu, 3 Aug 2000 04:12:42 -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 EAA06774 for ; Thu, 3 Aug 2000 04:12:39 -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 <0FYP0008TIKXQM@mta5.snfc21.pbi.net> for dvd-discuss@eon.law.harvard.edu; Thu, 3 Aug 2000 01:07:45 -0700 (PDT) Date: Thu, 03 Aug 2000 01:34:37 -0700 From: Paul Hsieh Subject: Re: [dvd-discuss] copyleft subpoenad In-reply-to: <20000802211453.A14626@inka.de> To: dvd-discuss@eon.law.harvard.edu Message-id: <0FYP0008UIKXQM@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: ; from galt@inconnu.isu.edu on Wed, Aug 02, 2000 at 12:58:31PM -0600 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > On Wed, Aug 02, 2000 at 12:58:31PM -0600, John Galt wrote: > > > > This does set up a "slippery slope" arguement: The MPAA has consistently > > tried to apply the proceedings to non-parties, > > According a slashdot posting that appears to be from one of the Copyleft > people, this is part of the California case, i.e. it's the DVDCCA, not the > MPAA. That may very well be, but don't for a second believe that this action against Copyleft isn't related to the NY case. Go read the judge's final words at the end of the trial closely. He is sending a clear message to the plantiff's: he has pretty much bought David Touretsky's testimony, so whatever remains of the plantiff's case *must* proceed from this assumption. The MPAA probably had no choice but to take a position that indeed all the "forms of expression" that he showed in his DeCSS gallery must also indeed be illegal, as this appears to be a necessary precondition before the Judge could find in favor of the plantiffs. -- Paul Hsieh qed@pobox.com From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 3 09:17:43 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA13577 for dvd-discuss-outgoing; Thu, 3 Aug 2000 09:17:43 -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 JAA13574 for ; Thu, 3 Aug 2000 09:17:41 -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 JAA07868 for ; Thu, 3 Aug 2000 09:17:27 -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 JAA25552 for ; Thu, 3 Aug 2000 09:15:36 -0400 (EDT) Mime-Version: 1.0 Message-Id: In-Reply-To: <0FYP0008UIKXQM@mta5.snfc21.pbi.net> References: ; from galt@inconnu.isu.edu on Wed, Aug 02, 2000 at 12:58:31PM -0600 <0FYP0008UIKXQM@mta5.snfc21.pbi.net> Date: Thu, 3 Aug 2000 09:15:20 -0400 To: dvd-discuss@eon.law.harvard.edu From: "Arnold G. Reinhold" Subject: Re: [dvd-discuss] copyleft subpoenad 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 1:34 AM -0700 8/3/2000, Paul Hsieh wrote: > > On Wed, Aug 02, 2000 at 12:58:31PM -0600, John Galt wrote: >> > >> > This does set up a "slippery slope" arguement: The MPAA has consistently >> > tried to apply the proceedings to non-parties, >> >> According a slashdot posting that appears to be from one of the Copyleft >> people, this is part of the California case, i.e. it's the DVDCCA, not the >> MPAA. > >That may very well be, but don't for a second believe that this action against >Copyleft isn't related to the NY case. Go read the judge's final >words at the end >of the trial closely. He is sending a clear message to the >plantiff's: he has pretty >much bought David Touretsky's testimony, so whatever remains of the plantiff's >case *must* proceed from this assumption. The MPAA probably had no choice >but to take a position that indeed all the "forms of expression" >that he showed in >his DeCSS gallery must also indeed be illegal, as this appears to be >a necessary >precondition before the Judge could find in favor of the plantiffs. > It is a two edged sword they are wielding. Arguing that the object code for a DVD decoding program is speech is an uphill battle for our side. Arguing that a political T-shirt is *not* fully protected speech is a fool's errand for theirs. I don't see a single vote on the Supreme Court that would uphold such a position. Arnold Reinhold From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 3 09:46:47 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA14853 for dvd-discuss-outgoing; Thu, 3 Aug 2000 09:46:47 -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 JAA14850 for ; Thu, 3 Aug 2000 09:46:46 -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 JAA03668 for ; Thu, 3 Aug 2000 09:46:32 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id JAA23447; Thu, 3 Aug 2000 09:46:32 -0400 (EDT) Date: Thu, 3 Aug 2000 09:46:32 -0400 (EDT) Message-Id: <200008031346.JAA23447@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Authority --- some fixups. In-Reply-To: References: <200008022350.TAA21153@soggy-fibers.ai.mit.edu> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Ken Arromdee writes: > In which context is this being submitted to the copyright office? > > IIRC, the current requests for comments are specifically for how the DMCA > impacts on fair use and aren't a general everything-about-the-DMCA... Well, here's the RFC: http://www.eff.org/pub/Intellectual_property/DMCA/20000605_dmca_comments_request.html It ask specifically how the DMCA impacts the first-sale doctrine (which I answer; on the plaintiffs' reading, the first-sale doctrine is annihilated); it also asks as a catch-all question whether there is anything else the copyright office should consider. (The other section it asks about specifically is section 117, which, quoting the RFC, "permits the owner of a copy of a computer program to make a copy or adaptation of the program for archival purposes or as an essential step in the utilization of the program in conjunction with a machine." Nothing I can see in the specific questions regarding fair use). I guess I should rewrite my intro with reference to the issues in the RFC; perhaps there's also stuff I could trim for LOC purposes. However, time for that is awfully short --- the submission deadline is "by August 4". They do allow email submission by PDF attachment --- I was planning to have something in shape to email today, but perhaps email tomorrow (the 4th) is OK... rst From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 3 11:37:23 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA16016 for dvd-discuss-outgoing; Thu, 3 Aug 2000 11:37:23 -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 LAA16013 for ; Thu, 3 Aug 2000 11:37:20 -0400 Received: (from uucp@localhost) by natsemi-bh.nsc.com (8.8.8/8.6.11) id IAA15155 for ; Thu, 3 Aug 2000 08:37:05 -0700 (PDT) Received: from mailhost1.ia.nsc.com(147.5.200.40) by natsemi-bh.nsc.com via smap (4.1) id xma014809; Thu, 3 Aug 00 08:36:29 -0700 Received: from ball by ia.nsc.com (SMI-8.6/SMI-SVR4) id JAA11460; Thu, 3 Aug 2000 09:36:28 -0600 From: "John Zulauf" To: Subject: Re: [dvd-discuss] copying impossible with a player key? Date: Thu, 3 Aug 2000 09:40:13 -0600 Message-ID: <000101bffd61$1d29d8c0$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: Eric Eldred Date: Wed, 2 Aug 2000 22:48:32 -0400 > If "authorization" means both access control and decryption > control, then it seems the only way plaintiffs can control > decryption is to control completely the player market and > the host computers, so as to ban any possible steps to > do the copying, for example rewriting Windows to make it > impossible to use Windows copy facilities to copy the VOB > files to hard disk (without using DeCSS). Such an "architecture" -- CPSA -- is apparently in development at the DVD-CCA. http://www.dvdcca.org/4centity/data/tech/cpsa/cpsa081.pdf which I looked at in this msg. http://eon.law.harvard.edu/archive/dvd-discuss/msg06145.html effectively it is the plug-every-access-hole-in-the-chain-of-posseesion standard based on using encryption not to protect the content but to extort and enforce terms of a licensing agreement with the device manufacturers. It's the death of fair use rights for the user -- all with a non-privity contract. John Zulauf private netizen From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 3 11:40:45 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA16128 for dvd-discuss-outgoing; Thu, 3 Aug 2000 11:40:45 -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 LAA16121 for ; Thu, 3 Aug 2000 11:40:31 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id LAA22328 for dvd-discuss@eon.law.harvard.edu; Thu, 3 Aug 2000 11:45:10 -0400 Date: Thu, 3 Aug 2000 11:45:05 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] [lrlucietta@hotmail.com: Re: Summers v Tice (and Copyright?)] Message-ID: <20000803114505.A22319@eldritchpress.org> Mime-Version: 1.0 Content-Type: multipart/mixed; boundary="ZGiS0Q5IWpPtfppv" 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 --ZGiS0Q5IWpPtfppv Content-Type: text/plain; charset=us-ascii another forwarded email from cni-copyright@cni.org --ZGiS0Q5IWpPtfppv Content-Type: message/rfc822 Return-Path: Received: from localhost (root@localhost [127.0.0.1]) by eldritchpress.org (8.8.7/8.8.7) with ESMTP id JAA22251 for ; Thu, 3 Aug 2000 09:10:04 -0400 Received: from pop.ne.mediaone.net by fetchmail-4.5.8 POP3 for (single-drop); Thu, 03 Aug 2000 09:10:09 EDT Received: from chmls15.mediaone.net ([24.147.1.150]) by chmls14.mediaone.net (Netscape Messaging Server 4.15) with ESMTP id FYPVF600.LMF for ; Thu, 3 Aug 2000 08:45:06 -0400 Received: from chmls17.mediaone.net (chmls17.mediaone.net [24.147.1.152]) by chmls15.mediaone.net (8.8.7/8.8.7) with ESMTP id IAA11399 for ; Thu, 3 Aug 2000 08:45:05 -0400 (EDT) Received: from b.cni.org (b.cni.org [192.100.21.6]) by chmls17.mediaone.net (8.8.7/8.8.7) with SMTP id IAA20466 for ; Thu, 3 Aug 2000 08:45:05 -0400 (EDT) Received: from localhost by b.cni.org (5.65v4.0/1.1.10.5/13Aug97-0713PM) id AA31610; Thu, 3 Aug 2000 05:03:33 -0400 Received: from cni.org by b.cni.org (5.65v4.0/1.1.10.5/13Aug97-0713PM) id AA07727; Wed, 2 Aug 2000 15:23:13 -0400 Received: from hotmail.com (f128.law3.hotmail.com [209.185.241.128]) by cni.org (8.8.7/8.8.7) with ESMTP id PAA19433 for ; Wed, 2 Aug 2000 15:18:55 -0400 Received: from mail pickup service by hotmail.com with Microsoft SMTPSVC; Wed, 2 Aug 2000 12:20:24 -0700 Received: from 63.255.6.22 by lw3fd.law3.hotmail.msn.com with HTTP; Wed, 02 Aug 2000 GMT Message-Id: Date: Wed, 02 Aug 2000 12:20:23 PDT Reply-To: cni-copyright@cni.org Sender: owner-cni-copyright@cni.org Precedence: bulk From: "Liane Lucietta" To: Multiple recipients of list Subject: Re: Summers v Tice (and Copyright?) X-Originating-Ip: [63.255.6.22] X-Listprocessor-Version: 8.1 -- ListProcessor(tm) by CREN I am not familiar with the current case, but I offer this simplified, stripped-down explanation of Judge Kaplan's analogy. To win in a negligence action, the plaintiff must prove the defendant's act caused his or her injury. In Summers v. Tice it was impossible for the plaintiff to prove this causal connection because it was impossible to know WHICH gun, and therefore WHICH defendant's act caused the plaintiff's injury. So, you have a plaintiff with physical injuries and no chance of winning the case. Because of this, the court shifted the burden of proof to the defendants. Instead of making the plaintiff prove who fired the shot, it was up to each defendant to prove they were NOT the one that fired the shot -- or both of them would be held liable. Judge Kaplan is suggesting that if it is impossible for the plaintiff to prove that the defendants copied the protected work, causing decrypted movies to be available over the Internet, maybe it is fair to shift the burden to the defendant to prove they did NOT copy the protected work and are not responsible for the availability of decrypted movies on the Internet. In my view, it is inappropriate to bring a tort law concept into a copyright infringement suit. Tort law grew out of the industrial revolution, when large numbers of factory workers started getting mangled in machinery. Bodily injury is involved in all the tort cases with which I'm familiar, where the plaintiff is relieved of the burden of proving causation. In Summers v. Tice the plaintiff was injured. And, the court probably didn't believe the defendants didn't know which one fired the shot. What they were really doing is making it impossible for the plaintiff to prove his case. So rather than letting them get away with this, the court turned their argument against them, and held both defendants liable. In the case of a botched surgery, the plaintiff (under anesthesia) couldn't prove which member of the surgical team acted to cause the injury. The surgical team put up a smokescreen and would not reveal what had happened, obviously hoping to make it impossible for the plaintiff to win. Again, the court turned this tactic back on them and held the defendants liable. In both these cases, it was arguably fair to relieve the plaintiff of the burden of proving causation because of the tactics the defendants used in attempting to escape liability. Judge Kaplan mentions products liability where some defendants are held liable without having done anything wrong, but just because of who they are. However, I believe he is actually referring to "market share liability" where again, plaintiff is relieved of the burden of proving causation. Here is a simplistic explanation of how it works. You set off some fireworks. You blind yourself, lose some fingers. The instrumentality has been blown up, making it impossible to prove which one of a half dozen manufacturers made these particular fireworks. Therefore, it is impossible for you to prove the causal connection between an act by a particular fireworks manufacturer and your injury. So is it fair that you have no remedy? Another underlying principle of tort law comes into play -- when some disastrous injury occurs who should fairly pay? The theory is that it is fair to make the parties who are making money off the product that caused the injury, pay for the injury. So, all the fireworks manufacturers have to kick in some money for your injury because they have all been making money off fireworks. This is despite the fact that you have not proved which particular manufacturer made the fireworks that caused your injury. The policies underlying copyright protection are very different from those underlying tort law, so I believe it is inappropriate for Judge Kaplan to apply a shifting of the evidentiary burden that is specifically aimed at achieving a fair result in tort cases -- in a copyright infringement case. In the copyright infringement case, part of the plaintiff's burden is to prove the defendant actually copied (or prepared a derivative work from, etc.) the protected work. Maybe it is difficult for the plaintiff to prove this. However, wouldn't it be completely impossible for the defendant to prove a negative -- that they did NOT copy the protected work, and therefore are not responsible for the availability of decrypted movies on the Internet? Liane Lucietta lrlucietta@hotmail.com ________________________________________________________________________ Get Your Private, Free E-mail from MSN Hotmail at http://www.hotmail.com/ --ZGiS0Q5IWpPtfppv-- From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 3 11:41:32 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA16146 for dvd-discuss-outgoing; Thu, 3 Aug 2000 11:41:32 -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 LAA16143 for ; Thu, 3 Aug 2000 11:41:31 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id ; Thu, 3 Aug 2000 08:41:33 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1D9B@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] the definition of 'Circumvention' Date: Thu, 3 Aug 2000 08:41:33 -0700 MIME-Version: 1.0 X-Mailer: Internet Mail Service (5.5.2650.21) Content-Type: text/plain; charset="iso-8859-1" Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > -----Original Message----- > From: Eric Eldred [mailto:eldred@eldritchpress.org] ... > > All right, we still have the problem of functionally equivalent > programs of which one is somehow authorized and another not, > by some means. I fail to see this as a problem. Authorization is not a matter of functionality. In general, people are "functionally equivilant" but one person may be authorized to do something that another is not authorized to do. I think you are chasing a red herring here. -- -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 Aug 3 11:48:31 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA16340 for dvd-discuss-outgoing; Thu, 3 Aug 2000 11:48:31 -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 LAA16337 for ; Thu, 3 Aug 2000 11:48:30 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id ; Thu, 3 Aug 2000 08:48:37 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1D9C@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] Authority --- some fixups. Date: Thu, 3 Aug 2000 08:48:37 -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 Just be explicit about which Constitutional priciples you are referring to. I might be able to come up w/ a suggested wording, but not right away. Maybe later today... -- -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, August 02, 2000 5:55 PM > To: dvd-discuss@eon.law.harvard.edu > Subject: RE: [dvd-discuss] Authority --- some fixups. > > > Richard Hartman writes: > > The one thing I don't see in the intro is the thesis that > > this reading establishes a new, unexpiring, class of intellectual > > property which superceeds both Copyright and Patent protections. > > It's there only by implication, in the reference to "basic > ... Constitutional principles". Suggested wording? > > rst > From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 3 12:00:02 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA16475 for dvd-discuss-outgoing; Thu, 3 Aug 2000 12:00:02 -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 LAA16471 for ; Thu, 3 Aug 2000 11:59:59 -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 KAA30538 for ; Thu, 3 Aug 2000 10:59:13 -0500 Message-ID: <39899517.C2B03496@mninter.net> Date: Thu, 03 Aug 2000 10:51:51 -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] the definition of 'Circumvention' References: <5A8391CA2D9ED311AFAA080009D982B10B1D9B@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: Eric Eldred [mailto:eldred@eldritchpress.org] > ... > > > > All right, we still have the problem of functionally equivalent > > programs of which one is somehow authorized and another not, > > by some means. > > I fail to see this as a problem. Authorization is not a > matter of functionality. In general, people are "functionally > equivilant" but one person may be authorized to do something > that another is not authorized to do. > > I think you are chasing a red herring here. Permit me to beat the implementation horse. If DeCSS is an implementation, which I have not seen disproven, then its primary use or purpose cannot be to circumvent. However, if the plaintiffs succeed in arguing that an implementation can somehow 1201 circumvent, it entails inconceivable conclusions. It entails that the authority comes external from the CSS "access control" system (fraud, product unfit for particular purpose) and that 1201 grants them the right to authorize CSS implementations (perpetual patent-without-patenting, not a 1201 or copyright privilege, counter to congressional intent, copyright misuse, unconstitutional). It's no red herring. If DeCSS implements, you must acquit! -- moseng@mninter.net I use PGP 6.5.3 -- http://www.underwhelm.org/pgp From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 3 12:03:26 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA16573 for dvd-discuss-outgoing; Thu, 3 Aug 2000 12:03:26 -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 MAA16570 for ; Thu, 3 Aug 2000 12:03:25 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id ; Thu, 3 Aug 2000 09:03:30 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1D9D@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] Authority --- some fixups. Date: Thu, 3 Aug 2000 09:03:29 -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 Suggested wording for my addition to the intro below... -- -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, August 02, 2000 4:51 PM > To: dvd-discuss@eon.law.harvard.edu > Subject: Re: [dvd-discuss] Authority --- some fixups. > > > Bryan Taylor writes: > > Good idea. If we submit it to the Copyight Offic, it might > be a good > > idea to include an introduction that goes through the > questions that we > > are trying to answer and states our thesis. > > Here's what I came up with very quickly, without enough time to do a > proper job. (The thing it's missing for that audience is a page or so > demolishing "it's piracy", which is a line they'll be trying for the > LOC even if they've abandoned it in court). > > Introduction > > The Digital Millenium Copyright Act gave copyright holders remarkable > new powers to regulate the content of their works, which have raised > concerns that the traditional balance in the law between the rights > granted to copyright holders and the public interest. These concerns > might be allayed somewhat if the copyright holders were carefully > staying within the bounds and intent of the law. However, that seems > not to be the case. In one of the first trials under the law, > Universal v. Corley (one of the so-called ``DeCSS cases''), the > copyright holders have adopted a broad, sweeping view of their powers > under the law --- far more sweeping than anything envisioned by > Congress, as they themselves described the intent of the law they > passed in their debates and their reports. Were their interpretation > to stand, it would give them an awesome degree of power over > where and > how citizens were able to access movies, and other protected content, > far in excess of what was intended by Congress, and with very > deleterious effects on the public interest. It would also create a new class of intellectual property that would -- unlike both Copyright and Patent protections -- have no regulated granting process and in effect have no expiration, in direct violation of the Constitutional authority granted to congress with regards to protecting the rights of intellectual property holders. >This clearly calls for > rulemaking findings which will restore some semblance of the actual > intent of the law --- findings which, as we will show, would still > leave copyright holders with a wide scope of possible measures with > which to offer legitimate protection for their work. > > Specifically, the plaintiff's case in Universal et al. v. Corley > relies on an interpetation of the Digital Millenium Copyright Act > (DMCA), specifically 17 USC 1201(a) --- a view already articulated by > their attorney, Dean Marks, in hearings for the librarian of Congress > --- which we regard as fundamentally flawed. This section of the law > provides protection for ``access control mechanisms'', which as we > shall show, was clearly intended by Congress to mean mechanisms which > perform some sort of affirmative check that a viewer is authorized to > view a particular work. Several such systems have been deployed by > the movie studios to protect their work, including one (codeveloped > with Circuit City, and marketed to consumers under the name ``Divx'') > which actually checked the authority of a particular viewer to view > works distributed on DVD disk. > > However, the ``Content Scrambling System'' supposedly ``hacked'' by > the plaintiffs in this case performs no such check --- a CSS-enabled > player will view {\em any} CSS formatted DVD without performing any > check that the user is authorized to view it. Plaintiffs claim > protection for it anyway by misreading the law to state that the > ``authority of the copyright owner'' referred to in the statute is not > a grant of authority to view any particular work, but rather authority > to implement the CSS process {\em itself} --- the authority to govern > not merely the {\em act} of access, but the permissible {\em means} of > access. Their assertion is in conflict with the text of the law, with > the legislative record of Congress enacting the law, and with > enduring, basic constitutional principles regarding intellectual > property protection. > > --------- [entire existing paper, sans intro, goes here ] ------------ > > Conclusion: > > The law regarding intellectual property protection in the United > States has always stressed a balance of interests, between, in > particular, copyright holders and the general public. This theme of > balance was kept carefully in mind by Congress as they deliberated > over and enacted the DMCA --- in particular, it is a theme of the > Congressional debates, repeated over and over, that the ban on > ``circumvention'' devices would be narrow, would cover only devices > specifically designed to grant unauthorized access, and would not > cover any device with a legitimate purpose. > > The interpretation of the law adopted by the MPAA stands this balance > on its head. The plaintiffs are asserting an absolute right to > control the manufacture of {\em any} machinery which is capable of > viewing their CSS-protected works This view, if permitted to stand, would create an unbreakable lock around material normally protected by Copyright. This lock would not expire with the Copyright protections, but remain in force indefinately. (You may have to ditch the LiViD player bit, unless you can come up w/ a good way to segue back into it. I kinda diverted the direction a bit too far, but I think the constitutional argument is stronger than the free market one) >, specifically including the LiViD > project, whose sole purpose is in fact producing a player > functionally > equivalent to those already commercially available for Windows and > Macintosh computer systems. And they are already using this power to > restrict the options available to the general public (by making > players artificially unable to view films from outside ``region 1'', > the U.S. and Canada), and so to artificially restrain trade. This is > not about piracy, it is about control. It should not, and cannot > stand. > From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 3 12:04:52 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA16612 for dvd-discuss-outgoing; Thu, 3 Aug 2000 12:04:52 -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 MAA16609 for ; Thu, 3 Aug 2000 12:04:51 -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 MAA19797 for ; Thu, 3 Aug 2000 12:04:38 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id MAA24470; Thu, 3 Aug 2000 12:04:37 -0400 (EDT) Date: Thu, 3 Aug 2000 12:04:37 -0400 (EDT) Message-Id: <200008031604.MAA24470@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: RE: [dvd-discuss] Authority --- some fixups. In-Reply-To: <5A8391CA2D9ED311AFAA080009D982B10B1D9C@mail2.onetouch.com> References: <5A8391CA2D9ED311AFAA080009D982B10B1D9C@mail2.onetouch.com> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Richard Hartman writes: > Just be explicit about which Constitutional priciples you are referring to. > > I might be able to come up w/ a suggested wording, but not right away. > Maybe later today... Well, here's a revised intro which is more specific in several ways. Still no "false threat of piracy" section. Sigh. I'm also considering culling two sections from the submission, because they look like they may be too focused on the minutiae of the New York case --- the "false, pretextual encryption" section, which is largely a techie dissection of CSS, and the "Authority not granted to the party performing the decryption" section, which concentrates perhaps too much on the particular way that DVDs are sold and used, and whose upshot is basically the same as the subsequent "First sale" section". BTW, I've talked with Sayuri Rajapakse of the copyright office, who believes that email by 5:00 Friday should be OK. My current plan is to beat something into final shape this evening, sleep on it, and mail early tomorrow. rst Introduction The Digital Millenium Copyright Act gave copyright holders remarkable new powers to regulate the content of their works, which have raised concerns that the traditional balance in the law between the rights granted to copyright holders and the public interest. These concerns might be allayed somewhat if the copyright holders were carefully staying within the bounds and intent of the law. However, that seems not to be the case. In one of the first trials under the law, Universal v. Corley (one of the so-called ``DeCSS cases''), the copyright holders have adopted a broad, sweeping view of their powers under the law --- far more sweeping than anything envisioned by Congress, as they themselves described the intent of the law they passed in their debates and their reports. Specifically, the plaintiff's case in Universal et al. v. Corley relies on an interpetation of the Digital Millenium Copyright Act (DMCA), specifically 17 USC 1201(a) --- a view already articulated by their attorney, Dean Marks, in hearings for the librarian of Congress --- which we regard as fundamentally flawed. This section of the law provides protection for ``access control mechanisms'', which as we shall show, was clearly intended by Congress to mean mechanisms which perform some sort of affirmative check that a viewer is authorized to view a particular work. Several such systems have been deployed by the movie studios to protect their work, including one (codeveloped with Circuit City, and marketed to consumers under the name ``Divx'') which actually checked the authority of a particular viewer to view works distributed on DVD disk. However, the ``Content Scrambling System'' supposedly ``hacked'' by the defendants in this case performs no such check --- a CSS-enabled player will view {\em any} CSS formatted DVD without performing any check that the user is authorized to view it. Further, the plaintiffs are claiming a right to impose arbitrary conditions on the implementation of the CSS technology, via the license terms which they seek to impose on player manufacturers. These terms already include the implementation of a ``region coding'' mechanism, which is intended to prevent disks sold in one region, designated by the movie studios, from being played in another --- with an obvious impact on, among other things, the ability of a purchaser to resell a work, one of the cornerstones of first sale. And nothing in the plaintiffs' interpretation would keep them from imposing further conditions, which could very well have the effect of annihilating the first sale doctrine in practice. The copyright office, in this round of requests for comments, asks how the implementation of the DMCA has affected the first sale doctrine. We will demonstrate in this paper that the effect is already substantial, and threaten to become worse. The copyright office also asks whether additional issues should be considered. We suggest the following: \begin{itemize} \item What is required for a technical measure to be an ``access control mechanism'', and how much control does the law grant copyright holders over those mechanisms? \item Are the movie studios using the DMCA to claim statutory protections for use of their works, and not just access? Are these claims consistent with the text of the law, and with Congressional intent in passing the law? \item Does the DMCA exceed the Constitutional bounds of Congress's power to grant intellectual property rights, by granting patent-like control over ``access control'' processes without any time limit? \item Is there an interpretation of the law which eliminates those Constitutional issues, and statutory protections for use controls, while still providing statutory protection for strong, effective technical mechanisms which allow copyright holders to protect their works? \end{itemize} This paper proposes such an interpretation of the law, demonstrates that it provides statutory protection for several strong, existing protection mechanisms (including one that applies to works distributed on DVD disk), and shows that it avoids severe problems with the interpretation advanced by the movie studios. --------------------- Conclusion: The law regarding intellectual property protection in the United States has always stressed a balance of interests, between, in particular, copyright holders and the general public. This theme of balance was kept carefully in mind by Congress as they deliberated over and enacted the DMCA --- in particular, it is a theme of the Congressional debates, repeated over and over, that the ban on ``circumvention'' devices would be narrow, would cover only devices specifically designed to grant unauthorized access, and would not cover any device with a legitimate purpose. The interpretation of the law adopted by the MPAA stands this balance on its head. The plaintiffs are asserting an absolute right to control the manufacture of {\em any} machinery which is capable of viewing their CSS-protected works, specifically including the LiViD project, whose sole purpose is in fact producing a player functionally equivalent to those already commercially available for Windows and Macintosh computer systems. And they are already using this power to restrict the options available to the general public (by making players artificially unable to view films from outside ``region 1'', the U.S. and Canada), and so to artificially restrain trade. This is not about piracy, it is about control. It should not, and cannot stand. From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 3 12:07:12 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA16674 for dvd-discuss-outgoing; Thu, 3 Aug 2000 12:07:12 -0400 Received: from mail2.onetouch.com (mail2.onetouch.com [205.180.182.6]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id MAA16671 for ; Thu, 3 Aug 2000 12:07:11 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id ; Thu, 3 Aug 2000 09:07:18 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1D9E@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] first amendment defense Date: Thu, 3 Aug 2000 09:07:18 -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 The power wielded by the state may be illegitimate despite the people continuing to allow it. -- -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, August 02, 2000 10:20 PM > To: dvd-discuss@eon.law.harvard.edu > Subject: Re: [dvd-discuss] first amendment defense > > > You can write dit dah dah dit dit... but the speech is what's being > protected. Who speaks it is irrelevant. > > Im no expert in NY law. Im not from there. But that doesnt > change the fact > that you need a warrant to use Carnivore. And on top of > that, the ISP its > attached to has to request its use. I couldnt tell you if > that's policy or > law, but its a minor distinction. It has all the same safeguards as > ordinary, run of the mill wiretaps. > > I've read the constitution. Like alot of people on this list > im assuming, > i've also studied political science. The state's power is > legitimate as long > as the people allow it. If we wanted to, we could decide we > didn't want the > Constitution anymore, and it would become an illegitimate > source of power. > Why anyone would do that is beyond me, but nonetheless, it > could be done. > From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 3 12:17:01 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA16796 for dvd-discuss-outgoing; Thu, 3 Aug 2000 12:17:01 -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 MAA16793 for ; Thu, 3 Aug 2000 12:16:58 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id ; Thu, 3 Aug 2000 09:17:05 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1D9F@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: [dvd-discuss] Reduction ad absurdum ? Date: Thu, 3 Aug 2000 09:17:05 -0700 MIME-Version: 1.0 X-Mailer: Internet Mail Service (5.5.2650.21) Content-Type: text/plain; charset="iso-8859-1" Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Ok, bits & pieces of the conversations on this list were floating around in my head last night as I was trying to get my baby to sleep. Summers v. Tice states that anybody who -might- have done the deed can be held responsible without definite proof so long as it is certain that the deed was done by someone in the group and it is not possible to refine the responsibility beyond that point. (Not phrased the way it has been discussed ... it actually appears much more unpalatable this way, doesn't it?) Ok ... Summers v. Tice does not quite hit what I want but it's close. I am after something more along the lines of selective prosecution. Is there precedent that states that all persons responsible for an act must be held accountable if they can be identified, and that you can not prosecute one of them selectively? It seems reasonable, especially given that SvT has a much looser standard of identification of responsibilty ... Ok, assuming some Real Laywer (tm) out there can back up the selective prosecution aspect -- consider this. DeCSS does ABSOLUTELY NOTHING on it's own! That's right. Nothing! In order to do anything, it requires a) hardware (defendants: Intel, Gateway, Dell, et. al.) b) operating system (defendant: Microsoft) So. Given that the circumvention device is not solely DeCSS, but a computer -running- DeCSS, are we now going to have to ban "traffiking" in computers? (defendants: CompUSA, Fry's, Sears, et. al.) Is this a reductio ad absurdum, or a legitimate consequence of the DMCA? -- -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 Aug 3 12:24:41 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA17051 for dvd-discuss-outgoing; Thu, 3 Aug 2000 12:24:41 -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 MAA17048 for ; Thu, 3 Aug 2000 12:24:25 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id MAA22485 for dvd-discuss@eon.law.harvard.edu; Thu, 3 Aug 2000 12:29:05 -0400 Date: Thu, 3 Aug 2000 12:29:00 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] the definition of 'Circumvention' Message-ID: <20000803122900.C22319@eldritchpress.org> References: <5A8391CA2D9ED311AFAA080009D982B10B1D9B@mail2.onetouch.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <5A8391CA2D9ED311AFAA080009D982B10B1D9B@mail2.onetouch.com>; from hartman@onetouch.com on Thu, Aug 03, 2000 at 08:41:33AM -0700 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, Aug 03, 2000 at 08:41:33AM -0700, Richard Hartman wrote: > > > > -----Original Message----- > > From: Eric Eldred [mailto:eldred@eldritchpress.org] > ... > > > > All right, we still have the problem of functionally equivalent > > programs of which one is somehow authorized and another not, > > by some means. > > > I fail to see this as a problem. Authorization is not a > matter of functionality. In general, people are "functionally > equivilant" but one person may be authorized to do something > that another is not authorized to do. > > I think you are chasing a red herring here. No, I agree with you about people having responsibility and not devices. Maybe this is futile. But somehow I think we have to cover all the bases in interpreting 1201, even if they seem at first nonsense. Otherwise Judge Kaplan might surprise us by coming up with some interpretation we did not fully consider. And the plaintiffs do want to pin the lack of authority on the device or program, not the user. From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 3 12:29:01 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA17377 for dvd-discuss-outgoing; Thu, 3 Aug 2000 12:29:01 -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 MAA17358 for ; Thu, 3 Aug 2000 12:28:43 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id MAA22504 for dvd-discuss@eon.law.harvard.edu; Thu, 3 Aug 2000 12:33:22 -0400 Date: Thu, 3 Aug 2000 12:33:17 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Authority --- some fixups. Message-ID: <20000803123317.D22319@eldritchpress.org> References: <5A8391CA2D9ED311AFAA080009D982B10B1D9C@mail2.onetouch.com> <200008031604.MAA24470@soggy-fibers.ai.mit.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <200008031604.MAA24470@soggy-fibers.ai.mit.edu>; from rst@ai.mit.edu on Thu, Aug 03, 2000 at 12:04:37PM -0400 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, Aug 03, 2000 at 12:04:37PM -0400, Robert S. Thau wrote: > Richard Hartman writes: > > Just be explicit about which Constitutional priciples you are referring to. > > > > I might be able to come up w/ a suggested wording, but not right away. > > Maybe later today... > > Well, here's a revised intro which is more specific in several ways. > Still no "false threat of piracy" section. Sigh. > > I'm also considering culling two sections from the submission, because > they look like they may be too focused on the minutiae of the New York > case --- the "false, pretextual encryption" section, which is largely > a techie dissection of CSS, and the "Authority not granted to the > party performing the decryption" section, which concentrates perhaps > too much on the particular way that DVDs are sold and used, and whose > upshot is basically the same as the subsequent "First sale" section". > > BTW, I've talked with Sayuri Rajapakse of the copyright office, who > believes that email by 5:00 Friday should be OK. My current plan is > to beat something into final shape this evening, sleep on it, and mail > early tomorrow. > > rst Looks good to me. Go for it! And thanks for all the work you have done. From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 3 12:40:29 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA17568 for dvd-discuss-outgoing; Thu, 3 Aug 2000 12:40:29 -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 MAA17565 for ; Thu, 3 Aug 2000 12:40:27 -0400 Received: by waltz.rahul.net (Postfix, from userid 4001) id A08F899C87; Thu, 3 Aug 2000 09:40:10 -0700 (PDT) Received: from localhost (localhost [127.0.0.1]) by waltz.rahul.net (Postfix) with ESMTP id 828A0938C0 for ; Thu, 3 Aug 2000 09:40:10 -0700 (PDT) Date: Thu, 3 Aug 2000 09:40:09 -0700 (PDT) From: Ken Arromdee To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Authority --- some fixups. In-Reply-To: <200008031346.JAA23447@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 Thu, 3 Aug 2000, Robert S. Thau wrote: > > IIRC, the current requests for comments are specifically for how the DMCA > > impacts on fair use and aren't a general everything-about-the-DMCA... > Well, here's the RFC: Argh. I meant first sale. I really did. :-) From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 3 12:45:26 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA17732 for dvd-discuss-outgoing; Thu, 3 Aug 2000 12:45:26 -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 MAA17729 for ; Thu, 3 Aug 2000 12:45:25 -0400 Received: (from uucp@localhost) by natsemi-bh.nsc.com (8.8.8/8.6.11) id JAA18156 for ; Thu, 3 Aug 2000 09:45:10 -0700 (PDT) Received: from mailhost1.ia.nsc.com(147.5.200.40) by natsemi-bh.nsc.com via smap (4.1) id xma017365; Thu, 3 Aug 00 09:43:36 -0700 Received: from ball by ia.nsc.com (SMI-8.6/SMI-SVR4) id KAA19409; Thu, 3 Aug 2000 10:43:35 -0600 From: "John Zulauf" To: Subject: [dvd-discuss] Amicus deadline Date: Thu, 3 Aug 2000 10:47:20 -0600 Message-ID: <000201bffd6a$7d95e740$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 Is a real-live-lawyer going to help RST turn the authority piece into a amicus by Monday? I do believe we're just about out of time here folks!! On the lighter side (this is parody): http://i-want-a-website.com/about-linux/aug00.shtml#Piracy T-shirt cracks copy of Star Trek XXI -- "The shirt contained a Perl script which spits out a bash shell script which produces a GW-BASIC program which outputs a ROT13-encoded Python script that manufactures a Pig-Latin-encoded Java program that finally produces the real DeCSS C source code" "I don't know why anybody would use DeCSS to make illegal copies of something -- this Cody guy must be an idiot. Or he's on the MPAA payroll. But I repeat myself." From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 3 12:55:06 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA17882 for dvd-discuss-outgoing; Thu, 3 Aug 2000 12:55:06 -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 MAA17879 for ; Thu, 3 Aug 2000 12:55:03 -0400 Received: from samsara.law.cwru.edu (localhost [127.0.0.1]) by samsara.law.cwru.edu (8.9.3/8.9.3) with ESMTP id MAA27817; Thu, 3 Aug 2000 12:54:26 -0400 Message-Id: <200008031654.MAA27817@samsara.law.cwru.edu> To: dvd-discuss@eon.law.harvard.edu cc: junger@samsara.law.cwru.edu Subject: Re: [dvd-discuss] first amendment defense In-reply-to: Your message of "Tue, 01 Aug 2000 22:03:03 EDT." <3f.85a25bb.26b8db57@cs.com> Date: Thu, 03 Aug 2000 12:53:56 -0400 From: "Peter D. Junger" Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Consilgere@cs.com writes: : Not a book, a machine would be a better way of looking at it. An executable : is the equivalent of a machine. I suspect that this has already been taken care of many times by now, but a better analogy than a book is a phonograph record. The phonograph record or music CD contains ``code'' that can be executed by a phonograph or a CD player. The content of the record or CD is not analogous to the phonograph or CD player. Similary an ``executable'' stored on some digitial medium (as well, of course, as one stored on paper) is not in any way analogous to a machine, although there are machines, called computers, that can execute it. My apologies to the list members if I am, as I rather suspect, wasting their time by responding to a troll. -- 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 Aug 3 13:23:00 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA18186 for dvd-discuss-outgoing; Thu, 3 Aug 2000 13:23:00 -0400 Received: from tbird.iworld.com ([63.236.72.237]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id NAA18183 for ; Thu, 3 Aug 2000 13:22:57 -0400 Received: (from nobody@localhost) by tbird.iworld.com (8.10.2/8.10.2) id e73HMWQ00698; Thu, 3 Aug 2000 13:22:32 -0400 Date: Thu, 3 Aug 2000 13:22:32 -0400 Message-Id: <200008031722.e73HMWQ00698@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] first amendment defense Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Peter D. Junger wrote: >Consilgere@cs.com writes: > >: Not a book, a machine would be a better way of looking at it. An executable >: is the equivalent of a machine. > >I suspect that this has already been taken care of many times by now, but >a better analogy than a book is a phonograph record. The phonograph >record or music CD contains ``code'' that can be executed by a phonograph >or a CD player. The content of the record or CD is not analogous to >the phonograph or CD player. Similary an ``executable'' stored on some >digitial medium (as well, of course, as one stored on paper) is not >in any way analogous to a machine, although there are machines, called >computers, that can execute it. > >My apologies to the list members if I am, as I rather suspect, wasting their >time by responding to a troll. To the extent that the MPAA-publisher-union not artist-union behaves like a troll, this guy is good practice. I really ought to controll my temper. >-- >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 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 Thu Aug 3 15:16:40 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA23679 for dvd-discuss-outgoing; Thu, 3 Aug 2000 15:16:40 -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 PAA23676 for ; Thu, 3 Aug 2000 15:16:39 -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 PAA28317; Thu, 3 Aug 2000 15:16:02 -0400 Message-Id: <200008031916.PAA28317@samsara.law.cwru.edu> To: dvd-discuss@eon.law.harvard.edu cc: junger@samsara.law.cwru.edu Subject: Re: [dvd-discuss] first amendment defense In-reply-to: Your message of "Wed, 02 Aug 2000 23:23:45 EDT." Date: Thu, 03 Aug 2000 15:15:32 -0400 From: "Peter D. Junger" Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Consilgere@cs.com writes: : Humans don't get first amendment rights. Their speech does. Talking dogs : would get first amendment rights. How about parrots? See . -- 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 Aug 3 15:37:54 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA24178 for dvd-discuss-outgoing; Thu, 3 Aug 2000 15:37:54 -0400 Received: from web509.mail.yahoo.com (web509.mail.yahoo.com [216.115.104.224]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id PAA24175 for ; Thu, 3 Aug 2000 15:37:50 -0400 Message-ID: <20000803193654.3256.qmail@web509.mail.yahoo.com> Received: from [131.44.121.4] by web509.mail.yahoo.com; Thu, 03 Aug 2000 12:36:54 PDT Date: Thu, 3 Aug 2000 12:36:54 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] the definition of 'Circumvention' To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-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: > > So can we turn this around and say that in absence of a > license "by any words or conduct" the first sale allows > one copy, whether in RAM or on disk, of a DVD, and this > applies both to Xing and to LiViD (and DeCSS)? I never really thought of this. It's probably a good idea. The operation of DeCSS would then be noninfringing by 117(a)(1), since it is "an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner" http://www4.law.cornell.edu/uscode/17/117.html __________________________________________________ Do You Yahoo!? Kick off your party with Yahoo! Invites. http://invites.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 3 15:50:36 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA24461 for dvd-discuss-outgoing; Thu, 3 Aug 2000 15:50:36 -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 PAA24458 for ; Thu, 3 Aug 2000 15:50:35 -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 PAA14622 for ; Thu, 3 Aug 2000 15:50:23 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id PAA25616; Thu, 3 Aug 2000 15:50:21 -0400 (EDT) Date: Thu, 3 Aug 2000 15:50:21 -0400 (EDT) Message-Id: <200008031950.PAA25616@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] LOC comment draft up Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I got itchy fingers. There's a draft of a modified authority paper, intended for LOC sumbission, at HTML: http://www.ai.mit.edu/people/rst/dmca/loc-copy/loc-copy.html Postscript: http://www.ai.mit.edu/people/rst/dmca/loc-copy.ps Plaintext: http://www.ai.mit.edu/people/rst/dmca/loc-copy.txt In addition to the intro and conclusion posted earlier, this has two other additions, a new section on "the non-threat of piracy" in discussing the facts of the case, and a revised treatment of (duh) first sale. Given the late date, these both make me somewhat nervous, and I may ditch the "non-threat" section entirely, but I'll be posting them both here separately for a quick review first. Please fact-check, particularly wrt Ole's declaration (I couldn't find the declaration itself, and went on reports of experiments on the list). Any other review between now and tomorrow morning would of course be much appreciated, though we're very close to having to just say, "ship it". Sigh... rst From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 3 15:53:07 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA24554 for dvd-discuss-outgoing; Thu, 3 Aug 2000 15:53:07 -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 PAA24551 for ; Thu, 3 Aug 2000 15:53:06 -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 PAA14910 for ; Thu, 3 Aug 2000 15:52:54 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id PAA25627; Thu, 3 Aug 2000 15:52:53 -0400 (EDT) Date: Thu, 3 Aug 2000 15:52:53 -0400 (EDT) Message-Id: <200008031952.PAA25627@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] revised first sale discussion Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu [Still has the licensing bit that Eric dislikes, with some legitimate reason...] \subsection{Conflicts with the First Sale doctrine} In the spirit of the LOC's request for comments, let us first consider how the plaintiffs' interpretation of the DMCA relates to the First Sale doctrine, codified at 17 USC 109. This section of the copyright laws governs what rights are transferred to the purchaser of a published work, in the absence of a contract with the copyright owner (which clearly does not exist in the case of DVDs). It states that when a copy of a published work is sold, the purchaser acquires all rights other than those listed in 17 USC 106 as exclusive rights of the copyright owner. In fact, 17 USC 109(c) specifically provides that the right to privately display the work is transferred. In other words, the first sale doctrine states that when a published work is sold, the coypright owner voluntarily parts with the rights of control associated with ownership of a copy, and the purchaser of the DVD acquires the right to display the work to an audience in the physical presence of the copy. Since display inherently requires the act of access if the work is scrambled, the right of access is part of the larger right to display --- authority over which, once again, the copyright holder has voluntarily surrendered at the point of sale. However, as we have seen, the plaintiffs claim that this rule no longer applies in the case of DVDs. They believe that they retain authority over how a work on DVD may be lawfully displayed, because that display is only lawful when it is performed, in Mr. Marks' words, on ``a licensed device'' --- licensed by them, via their agents, the DVDCCA. And if all such devices implement some measure which restricts use of a work, such as region coding which prevents viewers from viewing a disk which they purchased in Europe, then the viewers have no lawful alternative way to access the content on the DVDs which they purchased. This obviously impacts the scope of possible resale, one of the rights traditionally acquired by the purchaser under the first sale doctrine. And the scope of further restrictions that might be imposed in the future is limited only by the plaintiffs' imaginations in drawing up their license. (In his colloquy with Mr. Carson of the LOC, Mr. Marks acknowledged that ``the technological protection measure is not only dealing with access, but also with subsequent uses of the content'' --- see the transcript of the LOC hearing at Stanford, p. 261). This analysis presumes that there is no contract which would alter the terms of sale of the published work, but in the case of DVDs, that is uncontested. See, for instance, Mr. Marks, representing the MPAA, once again 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} (Stanford LOC hearing transcript, p. 249). An alternative reading of the situtation, of course, would be that the first sale doctrine still applies, and that the movie studios have surrendered their right to control private viewing at the sale of a DVD. Note that if surrendering display rights as per first sale is not to the taste of certain copyright owners (including, evidently, the movie studios), the law does give them an option: they may sell their works, as is commonly done with software, pursuant to an explicit license agreement which imposes whatever additional restrictions are to their taste; contract law, then, rather than copyright law applies. And such a model of sales would impose scant burden on the plaintiffs; following the practice of software shrink-wrap license agreements, they can simply notify the buyer of the contract in a prominent way, and allow the purchaser to return the work if they don't agree with the terms. In fact, there is precedent for exactly that arrangement with the ``DivX'' pay-per-view scheme for controlling DVDs, which did require the consumer to sign an explicit contract. Incidentally, the prospect of communicating restrictions by license agreement eliminates any appearance of conflict between 17 USC 109, the First Sale doctrine, and 17 USC 1201, the anticircumvention provisions of the DMCA. If a copyright owner wants to exercise their right to control access to a published work via technical measures, granted by 1201, all the First Sale doctrine requires is that they provide a license agreement notifying the purchaser of what they are doing, which seems only fair. But, on the plaintiffs' reading of the law, such a conflict clearly exists. From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 3 15:57:14 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA24642 for dvd-discuss-outgoing; Thu, 3 Aug 2000 15:57:14 -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 PAA24639 for ; Thu, 3 Aug 2000 15:57:14 -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 PAA15366 for ; Thu, 3 Aug 2000 15:57:01 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id PAA25635; Thu, 3 Aug 2000 15:56:59 -0400 (EDT) Date: Thu, 3 Aug 2000 15:56:59 -0400 (EDT) Message-Id: <200008031956.PAA25635@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] new section: "Non-threat of piracy" Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu [The arithmetic below is based on Ole's reported 7 hours to download a 1.5 gb file over a private T1; I *hope* that's in the declaration, it is here: http://eon.law.harvard.edu/archive/dvd-discuss/msg03517.html BTW, I'm posting these sections here to make it easy for folks to comment; I hope it doesn't jam folks' mailboxes too badly.] \subsection{The non-threat of piracy} The movie studios have claimed, in submissions in Universal v. Corley and elsewhere, that CSS is part of a copy-control regime which is necessary to prevent ``piracy'' (that is, unauthorized coyping) of their works, justifying that claim in part by saying that digital technology allows the creation of limitless copies without generational loss. This piracy could conceivably take one of two forms. One would be creation of unauthorized physical copies of DVD disks, by ``bootleggers''; this is alleged to be common on the Pacific Rim. However, when pressed, representatives of the movie studios have been candid in admitting that the CSS technology does nothing at all to prevent such bootlegging. For instance, consider the following exchange, at a hearing held at Stanford University by the Copyright Office, Dean Marks, a lawyer representing the MPAA stated flatly in colloquy with David Carson of the Copyright office: \begin{verbatim} 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. 4 MR. CARSON: Okay. So I don't see how 5 you're stopping the -- I don't see how you're 6 stopping the piracies of DVDs in that respect. 7 Pirated DVDs can be sold on the open marketplace and 8 played in any legitimate DVD player. 9 MR. MARKS: Without infringement 10 copyright? 11 MR. CARSON: No, no, no. Certainly not. 12 But we know pirated goods are on the market all the 13 time. 14 MR. MARKS: Yes, they are. \end{verbatim} (Transcript, LOC hearing on the DMCA, Stanford University, May 19, 2000, pp. 246-247). We will be reviewing much more of this remarkable colloquy, and will in particular be returning to Mr. Marks' intriguing focus on control of DVD players, rather than control of works on DVD. But the important point here, for the moment, is that Mr. Marks freely admits that the CSS technology does nothing to prevent unauthorized copying of disks. But, there is another form of illegitimate copying which the movie studios routinely invoke, namely copying of their works from person to person via the Internet --- a threat supposedly enhanced by the possibility of making limitless copies of a digital work without generational loss over multiple generations of copies. However, the trial has established that this is at best, a distant threat. The volume of information on a DVD --- several gigabytes --- is simply too vast to transmit over even a fast, local network, let alone the far slower, wide-area links which characterize the Internet as a whole. In order to argue that such transmission is even feasible, the movie studios have had to argue that the video data on the DVDs can be compressed far further. But, that video data is already highly compressed; as testimony at the trial has demonstrated, performing this compression with any current compression technology necessarily involves throwing away some video data entirely, and substantially degrading the quality of the video in the process. Further, expert opinion in the field of compression is that breakthroughs which will allow drastically better high-quality compression of full-motion video (as opposed to special cases, like stills where 3-D geometric data is available) is unlikely, and further progress in the field will be incremental over the next few years. (Testimony of Peter Ramadge, Universal v. Corley transcript, pp. 884-932). So, whatever digital copies can be made are in fact, significantly degraded from the originals, despite their digital nature. Furthermore, they are by nature missing any of the ``extras'' which the movie studios have included on many DVDs (alternate audio tracks, etc.), which are significant selling points for the DVD over alternatives such as VHS. And yet unlike, say, compressed audio files, they are still too large to conveniently transmit over the Internet. The compression in Mr. Ramadge's examples was to make the files small enough to fit on a conventional Compact Disk (CD), about 650 megabytes. Extrapolating from experiments performed by Ole Craig, a witness for the defense, a file the size of a CD would take more than two hours to transmit over a dedicated T1 line, to another computer which was very close in internet topology. The effective bandwidth available through even a fast home internet connection (e.g., DSL) is generally much less, and DSL connections are still relatively rare. The plaintiffs note that higher bandwidth is available to researchers at some universities, but those are for supervised research and do not go, say, to the dorms. (Declaration of Olevario Craig, Universal v. Corley). Very few people, no matter how ill their will, would have the patience to sit still for hours to receive a poor-quality copy of a movie over the Internet, when the price for renting the high-quality original, with all its extras, is nominal. Lastly, it is worth noting that those who desire to obtain a digital copy of the video data on DVD, for whatever reason, have other tools available (e.g., ``DOD speed ripper''). At trial, the MPAA's head of antipiracy efforts, Mikhail Reider, claimed, unconvincingly, not to remember hearing of those tools. (Universal v. Corley transcript, Reider testimony, p. 680). Yet, while the movie studios have filed not one, but three separate lawsuits seeking to enjoin distribution of DeCSS, in three different states, they have not taken any legal action at all against distribution of these other tools, which facilitate ``Internet piracy'' in the exact same manner as DeCSS. So, DeCSS rates three lawsuits, and ``speed ripper'' not even one. A reasonable person might conclude that DeCSS threatens the movie studios' interests in a way that these other tools do not --- and in a way other than facilitating ``Internet piracy'', since they're all the same in that regard. There is, however, a significant difference --- ``speed ripper'' relies on the CSS descrambling performed by a commercial DVD player; it works by capturing that player's output in digital form. DeCSS implements CSS descrambling itself. As regards ``Internet piracy'' that's irrelevant --- the same results are achievable either way. However, DeCSS does allow you to do something which ``speed ripper'' does not --- it allows you to build a player which will render works on DVD without going to the movie studios (or their agent, the so-called DVD Copy Control Authority) for a license. Indeed, testimony at the trial has established that that is why it was written, and one of the authors has received a prestigious prize for the work. (Universal v. Corley transcript, Johansen testimony, pp. 616-627). It is this sort of activity --- making a legitimate DVD player, not ``Internet piracy'' ---- which will be most directly affected by a finding in favor of the plaintiffs. \subsection{The prayer for relief} From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 3 16:19:39 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA24774 for dvd-discuss-outgoing; Thu, 3 Aug 2000 16:19:39 -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 QAA24770 for ; Thu, 3 Aug 2000 16:19:37 -0400 From: wendy@seltzer.com Message-Id: <200008032019.QAA24770@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 P5BD9VMQ; Thu, 3 Aug 2000 16:20:29 -0400 Subject: Re: [dvd-discuss] LOC comment draft up To: dvd-discuss@eon.law.harvard.edu Content-type: text/plain; charset="iso-8859-1" Mime-version: 1.0 Date: Thu, 3 Aug 2000 16:20 -0400 Content-Transfer-Encoding: 8bit X-MIME-Autoconverted: from quoted-printable to 8bit by eon.law.harvard.edu id QAA24772 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Wow. Great work -- sorry I haven't contributed more, but it doesn't seem to have hurt the product. Ole's declaration is here: --Wendy >I got itchy fingers. There's a draft of a modified authority paper, >intended for LOC sumbission, at > > HTML: http://www.ai.mit.edu/people/rst/dmca/loc-copy/loc-copy.html > Postscript: http://www.ai.mit.edu/people/rst/dmca/loc-copy.ps > Plaintext: http://www.ai.mit.edu/people/rst/dmca/loc-copy.txt > >In addition to the intro and conclusion posted earlier, this has two >other additions, a new section on "the non-threat of piracy" in >discussing the facts of the case, and a revised treatment of (duh) >first sale. Given the late date, these both make me somewhat nervous, >and I may ditch the "non-threat" section entirely, but I'll be posting >them both here separately for a quick review first. > >Please fact-check, particularly wrt Ole's declaration (I couldn't find >the declaration itself, and went on reports of experiments on the >list). > >Any other review between now and tomorrow morning would of course be >much appreciated, though we're very close to having to just say, "ship >it". Sigh... > >rst From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 3 16:20:55 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA24801 for dvd-discuss-outgoing; Thu, 3 Aug 2000 16:20:55 -0400 Received: from tbird.iworld.com ([63.236.72.237]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id QAA24798 for ; Thu, 3 Aug 2000 16:20:53 -0400 Received: (from nobody@localhost) by tbird.iworld.com (8.10.2/8.10.2) id e73KKhR20204; Thu, 3 Aug 2000 16:20:43 -0400 Date: Thu, 3 Aug 2000 16:20:43 -0400 Message-Id: <200008032020.e73KKhR20204@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] first amendment defense Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Peter D. Junger wrote: >Consilgere@cs.com writes: > >: Humans don't get first amendment rights. Their speech does. Talking dogs >: would get first amendment rights. > >How about parrots? See . Parrots do not have free speech rights cuz they post broken links :) Rares >-- >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 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 Thu Aug 3 16:29:13 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA24974 for dvd-discuss-outgoing; Thu, 3 Aug 2000 16:29:13 -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 QAA24971 for ; Thu, 3 Aug 2000 16:29:09 -0400 Message-ID: <20000803202824.12448.qmail@web509.mail.yahoo.com> Received: from [131.44.121.4] by web509.mail.yahoo.com; Thu, 03 Aug 2000 13:28:24 PDT Date: Thu, 3 Aug 2000 13:28:24 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] first amendment defense To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-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: > My apologies to the list members if I am, as I rather suspect, > wasting their time by responding to a troll. I think the prefered term is now 'talking dog' instead of troll. Trolls at least can use correct citation form. __________________________________________________ Do You Yahoo!? Kick off your party with Yahoo! Invites. http://invites.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 3 16:43:15 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA25052 for dvd-discuss-outgoing; Thu, 3 Aug 2000 16:43:15 -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 QAA25049 for ; Thu, 3 Aug 2000 16:43:01 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id QAA22700 for dvd-discuss@eon.law.harvard.edu; Thu, 3 Aug 2000 16:47:42 -0400 Date: Thu, 3 Aug 2000 16:47:37 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] revised first sale discussion Message-ID: <20000803164737.A22513@eldritchpress.org> References: <200008031952.PAA25627@soggy-fibers.ai.mit.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <200008031952.PAA25627@soggy-fibers.ai.mit.edu>; from rst@ai.mit.edu on Thu, Aug 03, 2000 at 03:52:53PM -0400 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, Aug 03, 2000 at 03:52:53PM -0400, Robert S. Thau wrote: > [Still has the licensing bit that Eric dislikes, with some legitimate > reason...] >... > An alternative reading of the situtation, of course, would be that the > first sale doctrine still applies, and that the movie studios have > surrendered their right to control private viewing at the sale of a > DVD. Note that if surrendering display rights as per first sale is > not to the taste of certain copyright owners (including, evidently, > the movie studios), the law does give them an option: they may sell > their works, as is commonly done with software, pursuant to an > explicit license agreement which imposes whatever additional > restrictions are to their taste; contract law, then, rather than > copyright law applies. And such a model of sales would impose scant > burden on the plaintiffs; following the practice of software > shrink-wrap license agreements, they can simply notify the buyer of > the contract in a prominent way, and allow the purchaser to return the > work if they don't agree with the terms. In fact, there is precedent > for exactly that arrangement with the ``DivX'' pay-per-view scheme for > controlling DVDs, which did require the consumer to sign an explicit > contract. > > Incidentally, the prospect of communicating restrictions by license > agreement eliminates any appearance of conflict between 17 USC 109, > the First Sale doctrine, and 17 USC 1201, the anticircumvention > provisions of the DMCA. If a copyright owner wants to exercise their > right to control access to a published work via technical measures, > granted by 1201, all the First Sale doctrine requires is that they > provide a license agreement notifying the purchaser of what they are > doing, which seems only fair. Well, this last sentence is not quite right. If the license is to be a valid contract it would have to include some way for the purchaser to agree to it or opt out. Part of the agreement has to be some way to get your money back if you decide not to agree. And the license has to be prominently displayed so it is visible before purchase. You pointed out some of this in the paragraph above this one, and so this looseness here needs to be tightened. But even if the seller does that it might not be a valid contract for consumers, but only for businesses. The pertinent cases apply to the latter, but not the former. (This is why UCC was to be amended by article 21, which was rejected, and then the same forces started UCITA and DMCA at about the same time. Samuelson has written extensively about all this.) For example, Vault v Quaid should apply, unless the DMCA specifically overrules it (and it does not). In Vault v Quaid, the consumer was found to legally purchase a copy of a program that performed decryption and cracking of a password, in order to obtain fair use (one backup copy) of the program protected by Vault. In this case, the license could not prevent the fair use by the consumer of the cracking program, and therefore Vault could not prevent Quaid from selling it. In the case of Circuit City Divx, no doubt the technology was strong enough so that it was not cracked. And authorization for continuing use had to come from a second sale. So it is not exactly pertinent to the DeCSS case, although I admit it might have some bearing on the factual situation. > But, on the plaintiffs' reading of the law, such a conflict clearly > exists. Yes, I have no objection to this going to the LOC. But I don't feel that defense in Universal v Corley ought to supply this information. It is really not necessary for the argument by defense. Instead, it ought to be apparent from your analysis that DMCA is self-contradictory and that no interpretation of its clauses as a whole can be consistent and valid. As I mentioned earlier, the main reason DVD-CCA is not relying on licensing and contract is precisely that they are not sure they can make it stick--and they hope that DMCA and UCITA can. This case has to be decided on just DMCA and no escape route for plaintiffs should be allowed. Plaintiffs should be required to prove their authority model by evidence. Without that evidence defense can only surmise what interpretation is supposed to make sense and be applicable. If defense raises legitimate concerns about the applicability to first sale and fair use exceptions, then plaintiffs need to explain that DMCA was intended to overrule them. Then defense can appeal on just that basis and get the law thrown out. From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 3 16:55:05 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA25205 for dvd-discuss-outgoing; Thu, 3 Aug 2000 16:55:05 -0400 Received: from web6401.mail.yahoo.com (web6401.mail.yahoo.com [128.11.22.149]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id QAA25202 for ; Thu, 3 Aug 2000 16:54:59 -0400 Message-ID: <20000803205442.2799.qmail@web6401.mail.yahoo.com> Received: from [207.1.61.98] by web6401.mail.yahoo.com; Thu, 03 Aug 2000 13:54:42 PDT Date: Thu, 3 Aug 2000 13:54:42 -0700 (PDT) From: Pete Broule Subject: Re: [dvd-discuss] LOC comment draft up To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu >Note the peculiar statement that ``Because CSS is an encryption technology, CSS qualifies as an access control measure''. >This already indicates that the plaintiffs have adopted a somewhat strained reading of the statute. The statutory definition of >``effective access control'' -- that an effective access control measure is one that ``requires the application of information, >or a process or treatment, with authority of the copyright owner, to gain access to the work'' -- makes no specfic reference >to encryption, and indeed, as we have seen, it is perfectly possible to have an access control measure which does not encrypt >the work it protects. I can't seem to come to terms with this one. The statute doesn't require that an access control be encryption, but that's not what Mr. Gold is saying either. He is not saying that an access control is necessarily encryption; he is saying that encryption is necessarily an access control (because it requires a key to "open"). And that would be true, were it not for the "with the authority of the copyright owner" clause, which Mr. Gold fails to address. __________________________________________________ Do You Yahoo!? Kick off your party with Yahoo! Invites. http://invites.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 3 17:03:57 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA26450 for dvd-discuss-outgoing; Thu, 3 Aug 2000 17:03:57 -0400 Received: from mercury.clearway.com (c100.clearway.com [199.103.231.100]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA26447 for ; Thu, 3 Aug 2000 17:03:53 -0400 Received: by c100.clearway.com with Internet Mail Service (5.5.2650.21) id ; Thu, 3 Aug 2000 17:07:29 -0400 Message-ID: From: Leland Ray To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] revised first sale discussion Date: Thu, 3 Aug 2000 17:07:28 -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 > Eric Eldred wrote: > >In the case of Circuit City Divx, no doubt the technology was >strong enough so that it was not cracked. I think had Divx reached the same widespread use that DVDs enjoy, it might very well have been cracked. The point is, until technology reaches a critical mass its just not interesting enough to look at. This is a whole point that was not really explored at trial (what I would have liked to see in a closing argument), the reason movies started appearing on the internet, and the reason why DeCSS, and all the various DVD utilities are developed is because the technology is now widespread enough that there is a market for these additional products. You didn't see CD racks before there were CDs... From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 3 17:33:26 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA28261 for dvd-discuss-outgoing; Thu, 3 Aug 2000 17:33:26 -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 RAA28258 for ; Thu, 3 Aug 2000 17:33:24 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id ; Thu, 3 Aug 2000 14:33:32 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1DA3@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] the definition of 'Circumvention' Date: Thu, 3 Aug 2000 14:33:31 -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 Implementation does not convey authorization. Our model involves authorization through first sale. Their model involves authorization through licensed devices. Either way, the fact that the implmentation is technically conformant has nothing to do with authorization. -- -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, August 03, 2000 8:52 AM > To: dvd-discuss@eon.law.harvard.edu > Subject: Re: [dvd-discuss] the definition of 'Circumvention' > > > Richard Hartman wrote: > > > > > -----Original Message----- > > > From: Eric Eldred [mailto:eldred@eldritchpress.org] > > ... > > > > > > All right, we still have the problem of functionally equivalent > > > programs of which one is somehow authorized and another not, > > > by some means. > > > > I fail to see this as a problem. Authorization is not a > > matter of functionality. In general, people are "functionally > > equivilant" but one person may be authorized to do something > > that another is not authorized to do. > > > > I think you are chasing a red herring here. > > Permit me to beat the implementation horse. > > If DeCSS is an implementation, which I have not seen > disproven, then its > primary use or purpose cannot be to circumvent. > > However, if the plaintiffs succeed in arguing that an > implementation can > somehow 1201 circumvent, it entails inconceivable conclusions. It > entails that the authority comes external from the CSS > "access control" > system (fraud, product unfit for particular purpose) and that 1201 > grants them the right to authorize CSS implementations (perpetual > patent-without-patenting, not a 1201 or copyright privilege, > counter to > congressional intent, copyright misuse, unconstitutional). > > It's no red herring. If DeCSS implements, you must acquit! > > -- > moseng@mninter.net > I use PGP 6.5.3 -- http://www.underwhelm.org/pgp > From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 3 17:37:47 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA28758 for dvd-discuss-outgoing; Thu, 3 Aug 2000 17:37:47 -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 RAA28755 for ; Thu, 3 Aug 2000 17:37:46 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id ; Thu, 3 Aug 2000 14:37:54 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1DA4@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] the definition of 'Circumvention' Date: Thu, 3 Aug 2000 14:37:54 -0700 MIME-Version: 1.0 X-Mailer: Internet Mail Service (5.5.2650.21) Content-Type: text/plain; charset="iso-8859-1" Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > -----Original Message----- > From: Eric Eldred [mailto:eldred@eldritchpress.org] > Sent: Thursday, August 03, 2000 9:29 AM > To: dvd-discuss@eon.law.harvard.edu > Subject: Re: [dvd-discuss] the definition of 'Circumvention' > > > On Thu, Aug 03, 2000 at 08:41:33AM -0700, Richard Hartman wrote: > > > > > > > -----Original Message----- > > > From: Eric Eldred [mailto:eldred@eldritchpress.org] > > ... > > > > > > All right, we still have the problem of functionally equivalent > > > programs of which one is somehow authorized and another not, > > > by some means. > > > > > > I fail to see this as a problem. Authorization is not a > > matter of functionality. In general, people are "functionally > > equivilant" but one person may be authorized to do something > > that another is not authorized to do. > > > > I think you are chasing a red herring here. > > No, I agree with you about people having responsibility > and not devices. Maybe this is futile. But somehow I > think we have to cover all the bases in interpreting > 1201, even if they seem at first nonsense. Otherwise > Judge Kaplan might surprise us by coming up with some > interpretation we did not fully consider. > > And the plaintiffs do want to pin the lack of authority > on the device or program, not the user. > yeah ... so? that does not refute my point. the fact that our implementation is identical to their implementation would still not give it "authority", which is a metaphysical and legal concept, not a technical one. Just as one person can be authorized to enter the nuclear missle vaults and another may not, one program may be authorized to enter the DVD data "vault" and another may not. The fact that you somehow managed to get ahold of the combination of the lock on the nuclear missle vault does not give you aurhorization, it only gives you access ... unauthorized access. Likewise, DeCSS gives you access to the DVD "vault", but unauthorized access _in_their_authorisation_model_. The fact that it is an "implementation" does not convey authority to use that implementation. Authority, however, _is_ conveyed by other than just the word of the copyright holder. Authority is conveyed by fair uses, authority is conveyed by right of first sale. But trying to argue that you have authority because you have an "implementation" is ludicrous. -- -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 Aug 3 17:56:25 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA29609 for dvd-discuss-outgoing; Thu, 3 Aug 2000 17:56:25 -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 RAA29606 for ; Thu, 3 Aug 2000 17:56:24 -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 RAB19276 for ; Thu, 3 Aug 2000 17:56:08 -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 RAA04039 for ; Thu, 3 Aug 2000 17:54:02 -0400 (EDT) Mime-Version: 1.0 Message-Id: In-Reply-To: <5A8391CA2D9ED311AFAA080009D982B10B1DA4@mail2.onetouch.com> References: <5A8391CA2D9ED311AFAA080009D982B10B1DA4@mail2.onetouch.com> Date: Thu, 3 Aug 2000 17:53:55 -0400 To: dvd-discuss@eon.law.harvard.edu From: "Arnold G. Reinhold" Subject: [dvd-discuss] Oral Arguments? Content-Type: text/plain; charset="us-ascii" ; format="flowed" Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Can anyone tell me if oral arguments on the NY DeCSS case are still scheduled for August 8? Are they open to the public? What time do they start? Same place (500 Pine St Room 12D)? Arnold Reinhold From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 3 17:58:42 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA29699 for dvd-discuss-outgoing; Thu, 3 Aug 2000 17:58:42 -0400 Received: from hotmail.com (f250.law9.hotmail.com [64.4.8.75]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id RAA29696 for ; Thu, 3 Aug 2000 17:58:41 -0400 Received: (qmail 67947 invoked by uid 0); 3 Aug 2000 21:57:58 -0000 Message-ID: <20000803215758.67946.qmail@hotmail.com> Received: from 128.244.34.133 by www.hotmail.com with HTTP; Thu, 03 Aug 2000 14:57:58 PDT X-Originating-IP: [128.244.34.133] From: "Harold Eaton" To: dvd-discuss@eon.law.harvard.edu Subject: RE: [dvd-discuss] the definition of 'Circumvention' Date: Thu, 03 Aug 2000 17:57:58 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 Richard Hartman wrote: >But trying to argue that you have authority because >you have an "implementation" is ludicrous. I think that the point here is that everything stops making sense if the authority is built into the device (whether it flows through to the person or not). If the authority is built-in to the device, it really cannot ''effectively control access'' to the work. If however, the authority comes from possessing the title key, then the DeCSS "implementation" checks for the authority before it grants access - this is what makes it an implementation. ________________________________________________________________________ Get Your Private, Free E-mail from MSN Hotmail at http://www.hotmail.com From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 3 18:04:27 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA29789 for dvd-discuss-outgoing; Thu, 3 Aug 2000 18:04:27 -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 SAA29786 for ; Thu, 3 Aug 2000 18:04:26 -0400 Received: from ip24.bedford2.ma.pub-ip.psi.net ([38.32.10.24]) by relay20.smtp.psi.net with smtp (Exim 3.13 #3) id 13KT65-0001c8-00 for dvd-discuss@eon.law.harvard.edu; Thu, 03 Aug 2000 18:04:14 -0400 From: Ron Gustavson To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] LOC comment draft up Date: Thu, 03 Aug 2000 17:57:57 -0400 Message-ID: References: <20000803205442.2799.qmail@web6401.mail.yahoo.com> In-Reply-To: <20000803205442.2799.qmail@web6401.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 SAA29787 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, 3 Aug 2000 13:54:42 -0700 (PDT), Pete Broule wrote: >I can't seem to come to terms with this one. The statute doesn't >require that an access control be encryption, but that's not what Mr. >Gold is saying either. He is not saying that an access control is >necessarily encryption; he is saying that encryption is necessarily >an access control (because it requires a key to "open"). And that Of course, depending on which elements you encrypt, encryption need not be an access control, but, instead an authentication ie: digital signatures. __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 3 18:17:24 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA30386 for dvd-discuss-outgoing; Thu, 3 Aug 2000 18:17:24 -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 SAA30383 for ; Thu, 3 Aug 2000 18:17:23 -0400 Received: from ip24.bedford2.ma.pub-ip.psi.net ([38.32.10.24]) by relay20.smtp.psi.net with smtp (Exim 3.13 #3) id 13KTIc-0001jK-00 for dvd-discuss@eon.law.harvard.edu; Thu, 03 Aug 2000 18:17:10 -0400 From: Ron Gustavson To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] revised first sale discussion Date: Thu, 03 Aug 2000 18:10:54 -0400 Message-ID: References: <200008031952.PAA25627@soggy-fibers.ai.mit.edu> <20000803164737.A22513@eldritchpress.org> In-Reply-To: <20000803164737.A22513@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 SAA30384 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, 3 Aug 2000 16:47:37 -0400, Eric Eldred wrote: >For example, Vault v Quaid should apply, unless the DMCA >specifically overrules it (and it does not). In Vault v Quaid, >the consumer was found to legally purchase a copy of a program >that performed decryption and cracking of a password, in order >to obtain fair use (one backup copy) of the program protected >by Vault. In this case, the license could not prevent the >fair use by the consumer of the cracking program, and therefore >Vault could not prevent Quaid from selling it. Perhaps much trouble arises from the fact that we aren't buying DeCSS, but distributing it freely. Perhaps we all need to click on a license that elaborates how DeCSS may be legally used? another thought: What other software might need DVDCCA authorization? Winzip, WinRAR, CuteFTP, mIRC, ICQ. Real Producer, Quicktime, Media Player, Premiere, EZCD Creator, and so on might all be seen as potentially aiding "piracy." __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 3 18:19:34 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA30512 for dvd-discuss-outgoing; Thu, 3 Aug 2000 18:19:34 -0400 Received: from odin.funcom.com (odin.funcom.com [193.71.100.3]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id SAA30509 for ; Thu, 3 Aug 2000 18:19:33 -0400 Received: from odin ([193.71.100.3]) by odin.funcom.com with smtp (Exim 2.12 #1) id 13KTKh-0006VW-00 for dvd-discuss@eon.law.harvard.edu; Fri, 4 Aug 2000 00:19:19 +0200 Date: Fri, 4 Aug 2000 00:19:18 +0200 (CEST) From: Frank Andrew Stevenson X-Sender: frank@odin To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Oral Arguments? In-Reply-To: Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu If memory serves me right it is 500 _Pearl_ st (12D). Beyond that I don't know much. On Thu, 3 Aug 2000, Arnold G. Reinhold wrote: > Can anyone tell me if oral arguments on the NY DeCSS case are still > scheduled for August 8? > Are they open to the public? > What time do they start? > Same place (500 Pine St Room 12D)? > > Arnold Reinhold > This sentence is unique in this respect; it can safely be attributed to my employer, Funcom Oslo AS. There is no place like N59 50.558' E010 50.870'. (WGS84) I enjoy coffee, and support cafe: http://www.eff.org/cafe/ From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 3 18:22:18 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA30562 for dvd-discuss-outgoing; Thu, 3 Aug 2000 18:22:18 -0400 Received: from ns.fgks.com ([208.130.17.130]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id SAA30559 for ; Thu, 3 Aug 2000 18:22:17 -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 SAA23833 for ; Thu, 03 Aug 2000 18:24:34 +0100 Received: from FGDOM-Message_Server by FGKSGW with Novell_GroupWise; Thu, 03 Aug 2000 18:16:33 -0400 Message-Id: X-Mailer: Novell GroupWise 5.5.2 Date: Thu, 03 Aug 2000 18:16:16 -0400 From: "Edward Hernstadt" To: , Subject: Re: [dvd-discuss] Oral Arguments? 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 SAA30560 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu there will not be an oral argument on August 8; whether there will be one at all is still an open question. 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 >>> Frank Andrew Stevenson 08/03/00 06:19PM >>> If memory serves me right it is 500 _Pearl_ st (12D). Beyond that I don't know much. On Thu, 3 Aug 2000, Arnold G. Reinhold wrote: > Can anyone tell me if oral arguments on the NY DeCSS case are still > scheduled for August 8? > Are they open to the public? > What time do they start? > Same place (500 Pine St Room 12D)? > > Arnold Reinhold > This sentence is unique in this respect; it can safely be attributed to my employer, Funcom Oslo AS. There is no place like N59 50.558' E010 50.870'. (WGS84) I enjoy coffee, and support cafe: http://www.eff.org/cafe/ From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 3 18:25:37 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA30602 for dvd-discuss-outgoing; Thu, 3 Aug 2000 18:25:37 -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 SAA30599 for ; Thu, 3 Aug 2000 18:25:36 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id ; Thu, 3 Aug 2000 15:25:44 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1DA6@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] the definition of 'Circumvention' Date: Thu, 3 Aug 2000 15:25:42 -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: Harold Eaton [mailto:haceaton@hotmail.com] > Sent: Thursday, August 03, 2000 2:58 PM > To: dvd-discuss@eon.law.harvard.edu > Subject: RE: [dvd-discuss] the definition of 'Circumvention' > > > Richard Hartman wrote: > > >But trying to argue that you have authority because > >you have an "implementation" is ludicrous. > > I think that the point here is that everything stops > making sense if the authority is built into the device > (whether it flows through to the person or not). If > the authority is built-in to the device, it really cannot > ''effectively control access'' to the work. No ... but it can control access in the legal sense. If the device is not authorized, then the access is a circumvention. If the device is authorized then the acces is not a circumvention. Now we have the technical issue that there is no way to tell whether the device is authorized ... but that has no bearing on the legal import. The true problems with authorization being attached to the device lie in these implications, and those are what must be dealt with. > > If however, the authority comes from possessing the > title key, But it doesn't. Access comes from posessing the title key, just as access to the nuclear missile vault in my example comes from posessing the combination to the keypad lock on the door. But possession of the key -only- gives access, not authorization. Thus the access is deemed to be "circumvention". >then the DeCSS "implementation" checks for > the authority before it grants access - this is what > makes it an implementation. > > ______________________________________________________________ And an implementation gives you access ... but not the authority needed to make that access legitimate. -- -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 Aug 3 18:57:05 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA31776 for dvd-discuss-outgoing; Thu, 3 Aug 2000 18:57:05 -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 SAA31773 for ; Thu, 3 Aug 2000 18:57:03 -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 RAA23816 for ; Thu, 3 Aug 2000 17:56:31 -0500 Message-ID: <3989FA2F.EE08F4D1@mninter.net> Date: Thu, 03 Aug 2000 18:03:11 -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: <5A8391CA2D9ED311AFAA080009D982B10B1DA4@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: > But trying to argue that you have authority because > you have an "implementation" is ludicrous. You miss my point. I will try to peel away the layers of confusion and put this clearly. 1201(a3B): 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 plaintiffs assert that CSS is such a measure. Fine. 1201(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 meaasure, without the authority of the copyright owner The plaintiffs assert that DeCSS does this, and that it is its primary use or purpose. Not so fast. I assert that DeCSS is a CSS implementation. I also assert that CSS implementations either (Never circumvent) or (Are equally capable of circumvention). This is because either the authority to access is conveyed within the CSS system, or it is conveyed external to the CSS system. If authorization is within the CSS system, and CSS is not a broken system, every CSS implementation will provide access if and only if the access authorized. Therefore CSS implementations can never circumvent. If authorization is external to the CSS system, no CSS implementation is capable of distinguishing whether access is authorized or not. CSS is, as I've come to understand the word, pretextual. In this case, every CSS implementation is equally likely to be used in circumvention. Where is the distinction, then, that DeCSS should be singled out for 1201 action? The only sticking point remaining: What boundaries define the CSS system? You've got my (our?) proposition: The key authentication mechanism that unlocks the disk and allows decryption defines CSS. This is the one that makes sense. You own the disk, the disk contains its own key that conveys authorization to access the material. You can use any CSS-compliant implementation you wish because you are not bound by any obligation to do otherwise. Some are crummy, some let you do what you want. Then, you've got the plaintiff's possible propositions: Maybe CSS's boundaries include all the contracts that the DVDCCA has you sign in order to truly implement CSS. Those contractual limitations are part of CSS, so DeCSS is actually not a true implementation. This flies in the face of logic and reason, of caselaw and the constitution, of congressional intent and did I say reason? As long as the technological portons of CSS are reverse-engineerable, those portions can be freely reimplemented free of the contractual obligations. If the argument is that DeCSS doesn't fully implement, the burden of proof is on the plaintiffs to demonstrate what pieces are missing from the implementation. Ah! but those contracts are under seal! They utterly failed at this in court. They never suggested that DeCSS breaks or tricks CSS. In fact, DeCSS does its job well as a CSS implementation. If DeCSS implements, but its primary use or purpose is to circumvent, the same could be said for every CSS implementation. So what is unique about DeCSS? There is the fulcrum. Note this can only be persued in tandem with one of the unfathomable authority models. Add that to the long list of unfathomable conclusions that result from the confluence-of-events or authorized-device authority models. I'm comfortable saying that these authority models are egregious and will cause, ultimately, a finding for the defendant. I'm surprised you still see them as viable. What I'm working with, here, is the assumption that they are untenable, but the basic accusation that DeCSS still circumvents may somehow survive the failure of these models. This reading of 1201 and the 2600 case dissolves the rhetoric of the studios, and what remains is what is truly at stake. It has been said before. What copyright, anti-trust, and the constitution would not allow would become impossible to avoid with a finding that DeCSS ever accesses without authorization. The studios are faced with the same question as always, phrased differently: Is authorization to access determined within the TPM, or not? If it is determined within the TPM, DeCSS never cirumvents. If it is external to the TPM, no CSS implementation is more or less likely to be used for circumvention than any other. If Kaplan rules that CSS actually includes the contracts penned by the DVDCCA and thus DeCSS doesn't implement and does circumvent, well, we've got nowhere to go but up! If I remember correctly, Kaplan stifled the authorization avenue of testimony. Talk about an issue for appeal. I think the evidence on record supports this reading. This reading gives us a win, reinforces the true intent and meaning of 1201, is far more constitutionally sound, and so on. So I'll say it again, and I will say it until it makes sense or someone demonstrates me wrong: DeCSS implements, and therefore its primary purpose or use is no more or less circumvention than every other CSS implementation. I apologize to those reading who've heard this enough--I just don't understand why I haven't seen a solid argument to the contrary. -- moseng@mninter.net I use PGP 6.5.3 -- http://www.underwhelm.org/pgp From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 3 19:13:35 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA02707 for dvd-discuss-outgoing; Thu, 3 Aug 2000 19:13:35 -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 TAA02704 for ; Thu, 3 Aug 2000 19:13:33 -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 SAA25507 for ; Thu, 3 Aug 2000 18:13:00 -0500 Message-ID: <3989FE0B.CC55418E@mninter.net> Date: Thu, 03 Aug 2000 18:19:39 -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: <5A8391CA2D9ED311AFAA080009D982B10B1DA6@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 however, the authority comes from possessing the > > title key, > > But it doesn't. Access comes from posessing the > title key, just as access to the nuclear missile > vault in my example comes from posessing the combination > to the keypad lock on the door. But possession > of the key -only- gives access, not authorization. > Thus the access is deemed to be "circumvention". Well, not really. Remember who gave us the keys? Would you have been given the key by the person with authority if they didn't mean for you to access what's behind the lock with their authorization? It is like me giving my kid the keys to the car, but calling the police five minutes later and telling them he was driving it without my authorization. And don't forget, this is copyright and not property law, so the copyright holder is going to have a very difficult time saying that they had revoked the key but the kid used it anyway. The key isn't necessary for access, anyway. You can get access, with difficulty, without the key. The point is, the key conveys the copyright holder's authority. If you had gotten the key from another source, this would be circumvention. They key you had obviously did not come with authorization. Even if it worked. -- moseng@mninter.net I use PGP 6.5.3 -- http://www.underwhelm.org/pgp From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 3 19:23:01 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA02845 for dvd-discuss-outgoing; Thu, 3 Aug 2000 19:23:01 -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 TAA02842 for ; Thu, 3 Aug 2000 19:23:00 -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 SAA26295 for ; Thu, 3 Aug 2000 18:22:29 -0500 Message-ID: <398A0044.5973C43D@mninter.net> Date: Thu, 03 Aug 2000 18:29:08 -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] the definition of 'Circumvention' References: <5A8391CA2D9ED311AFAA080009D982B10B1DA4@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: > Authority, however, _is_ conveyed by other than > just the word of the copyright holder. Authority > is conveyed by fair uses, authority is conveyed > by right of first sale. I disagree with your understanding of authority here, too. How are you going to get fair use (something that the copyright holder cannot authorize or disauthorize) if your ACCESS is not authorized by the copyright holder (authority over which they are granted by 1201)? And all the devices you would want to use to get access without authorization are outlawed? 1201 talks about about copyright holder authority and access. Not natural rights and use. I think we're talking at cross purposes, but I tend to see your first sale/fair use attack on 1201 as less than convincing, because as I see it, it tends to ignore 1201 as it is written in hopes of melding it into something it is not. I think it overreaches, when working within the law can achieve equally desireable results. But what do I know? -- moseng@mninter.net I use PGP 6.5.3 -- http://www.underwhelm.org/pgp From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 3 19:42:46 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA03004 for dvd-discuss-outgoing; Thu, 3 Aug 2000 19:42:46 -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 TAA03001 for ; Thu, 3 Aug 2000 19:42:45 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id ; Thu, 3 Aug 2000 16:42:53 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1DA7@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] the definition of 'Circumvention' Date: Thu, 3 Aug 2000 16:42:53 -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 > -----Original Message----- > From: Chris Moseng [mailto:moseng@mninter.net] > Sent: Thursday, August 03, 2000 4:03 PM > To: dvd-discuss@eon.law.harvard.edu > Subject: Re: [dvd-discuss] the definition of 'Circumvention' > > > Richard Hartman wrote: > > > But trying to argue that you have authority because > > you have an "implementation" is ludicrous. > > You miss my point. I will try to peel away the layers of confusion and > put this clearly. > > 1201(a3B): 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 plaintiffs assert that CSS is such a measure. Fine. > > 1201(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 > meaasure, without > the authority of the copyright owner > > The plaintiffs assert that DeCSS does this, and that it is its primary > use or purpose. Not so fast. > > I assert that DeCSS is a CSS implementation. Granted. But it is an implementation created "without the authority of the copyright owner", and therein lies the issue. Going into the technical details of the implementation such as title keys is irrelevant beyond this point. > > I also assert that CSS implementations either (Never > circumvent) or (Are > equally capable of circumvention). > > This is because either the authority to access is conveyed within the > CSS system, No. >or it is conveyed external to the CSS system. Yes. (next section snipped as it addressed "authority conveyed within the system") > > If authorization is external to the CSS system, no CSS > implementation is > capable of distinguishing whether access is authorized or not. But that _does_not_matter_. Not to the legal issue of whether the access was authorized or not. (requoting) > 1201(a3B): 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 reading here is that CSS is a "procees or treatment" that must be applied _with_the_authority_of_the_copyright_owner. DeCSS does not have that authority. At the technical level, it grants access. But on the legal level that access is circumvention ... as the law is currently written. The truth, though, is that authority may come from other sources that just the copyright owner. This clause as written does not acknowledge that fact. If it had merely stated "without legal authority", perhaps leaving that phrase to be defined elsewhere, we would be fine since legal authority may come from the copyright owner or it may come from the fair use law, or from the doctrine of first sale. But since the law states that the authority required here is solely the authority "of the copyright owner" we are left with an undeniable case of cirumvention. Elsewhere the DMCA asserts that it may be taken to override fair use law ... but that assertion and the phrase used here are in direct contradiction of one another. This is the conflict that must be resolved for the law to be enforcable. ... > I apologize to those reading who've heard this enough--I just don't > understand why I haven't seen a solid argument to the contrary. Because the line of argument that asserts that authority is implicit in the existance of an implementation is fundamentally flawed. -- -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 Aug 3 19:49:40 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA03099 for dvd-discuss-outgoing; Thu, 3 Aug 2000 19:49:40 -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 TAA03096 for ; Thu, 3 Aug 2000 19:49:39 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id ; Thu, 3 Aug 2000 16:49:47 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1DA8@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] the definition of 'Circumvention' Date: Thu, 3 Aug 2000 16:49:47 -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: Chris Moseng [mailto:moseng@mninter.net] > Sent: Thursday, August 03, 2000 4:20 PM > To: dvd-discuss@eon.law.harvard.edu > Subject: Re: [dvd-discuss] the definition of 'Circumvention' > > > Richard Hartman wrote: > > > > If however, the authority comes from possessing the > > > title key, > > > > But it doesn't. Access comes from posessing the > > title key, just as access to the nuclear missile > > vault in my example comes from posessing the combination > > to the keypad lock on the door. But possession > > of the key -only- gives access, not authorization. > > Thus the access is deemed to be "circumvention". > > Well, not really. Remember who gave us the keys? Would you have been > given the key by the person with authority if they didn't mean for you > to access what's behind the lock with their authorization? Who said I got the key from somebody with authority? I could've just read it from a memo lying open on his desk. Careless of him perhaps, but it doesn't grant me the authority to use that key. >It > is like me > giving my kid the keys to the car, but calling the police five minutes > later and telling them he was driving it without my authorization. No, it is more like you leaving the keys on the dining room table. And whether you told him he could use the car or not, if he is under age he needs authority from an alternate source (the state). > > And don't forget, this is copyright and not property law, so the > copyright holder is going to have a very difficult time > saying that they > had revoked the key but the kid used it anyway. Again you are conflating the technical and the legal. "Authority" is granted or withheld on a different plane than the technical aspects of access control. In truth, the whole CSS system is immaterial. If somebody pirates the work, they are subject to prosecution under the existing copyright laws ... because they did not have the "authority" to distribute copies of that work. This applies whether or not CSS is involved, so what does CSS contribute? Nothing. Except a hook onto which to hang the unexpiring control of a work that would not otherwise be attainable. > The key isn't necessary for access, anyway. You can get access, with > difficulty, without the key. The point is, the key conveys > the copyright > holder's authority. No, the copyright holders say-so conveys the copyright holder's authority. The key conveys nothing but access. The trouble is that there are other sources of authority which this law is not taking into account (despite the clause stating that it can not be read to exclude that authority). >If you had gotten the key from another > source, this > would be circumvention. They key you had obviously did not come with > authorization. Even if it worked. > -- -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 Aug 3 19:57:54 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA03159 for dvd-discuss-outgoing; Thu, 3 Aug 2000 19:57:54 -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 TAA03156 for ; Thu, 3 Aug 2000 19:57:53 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id ; Thu, 3 Aug 2000 16:58:01 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1DA9@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] the definition of 'Circumvention' Date: Thu, 3 Aug 2000 16:58:00 -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: Chris Moseng [mailto:moseng@mninter.net] > Sent: Thursday, August 03, 2000 4:29 PM > To: dvd-discuss@eon.law.harvard.edu > Subject: Re: [dvd-discuss] the definition of 'Circumvention' > > > Richard Hartman wrote: > > > Authority, however, _is_ conveyed by other than > > just the word of the copyright holder. Authority > > is conveyed by fair uses, authority is conveyed > > by right of first sale. > > I disagree with your understanding of authority here, too. How are you > going to get fair use (something that the copyright holder cannot > authorize or disauthorize) if your ACCESS is not authorized by the > copyright holder (authority over which they are granted by 1201)? Well, geez! That's the whole problem with the law now, isn't it? You -can- have authority from other sources, but you are deprived of the means by which to excercise this authority due to the stupid inclusion of the qualifier "the copyright holder's" before the word "authority" in that one clause. Thus you can be deprived of the -ability- to access even when you have full authority to do so as long as that authority does not original with the copyright holder. >And > all the devices you would want to use to get access without > authorization are outlawed? > > 1201 talks about about copyright holder authority and access. Not > natural rights and use. > > I think we're talking at cross purposes, but I tend to see your first > sale/fair use attack on 1201 as less than convincing, because as I see > it, it tends to ignore 1201 as it is written in hopes of > melding it into > something it is not. Of _course_ I am ignoring 1201 "as it is written"! 1201 as it is written is hoplessly in conflict with itself. In one place it asserts that it does not negate fair use and first sale applications, but in another place it is written specifically to exclude those sources of authority to access. You are wasting your time trying to assert an interpretation of the conveyance of authority by technical means if it is just to conform to 1201 as it is written. a) authority is conveyed by non-technical means; _access_ is _enabled_ by technical means b) 1201 should not be (_can_ not be) conformed to, it should be fixed >I think it overreaches, when working > within the law > can achieve equally desireable results. But what do I know? > I disagree that the results you would achieve are equally desirable. They leave intact the fundamental conflict within the law as written. -- -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 Aug 3 20:45:36 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA07369 for dvd-discuss-outgoing; Thu, 3 Aug 2000 20:45:36 -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 UAA07366 for ; Thu, 3 Aug 2000 20:45:32 -0400 Received: (from phil@localhost) by ramtop.demon.co.uk (8.9.3/8.9.3) id BAA18690 for dvd-discuss@eon.law.harvard.edu; Fri, 4 Aug 2000 01:43:33 +0100 Date: Fri, 4 Aug 2000 01:43:33 +0100 From: Phil Harrison To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] the definition of 'Circumvention' Message-ID: <20000804014332.A18590@ramtop.demon.co.uk> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <5A8391CA2D9ED311AFAA080009D982B10B1DA7@mail2.onetouch.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 0.95.6i In-Reply-To: <5A8391CA2D9ED311AFAA080009D982B10B1DA7@mail2.onetouch.com>; from Richard Hartman on Thu, Aug 03, 2000 at 04:42:53PM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, Aug 03, 2000 at 04:42:53PM -0700, Richard Hartman wrote: > > > -----Original Message----- > > From: Chris Moseng [mailto:moseng@mninter.net] > > > > I assert that DeCSS is a CSS implementation. > > Granted. But it is an implementation created "without the > authority of the copyright owner", and therein lies the issue. > Going into the technical details of the implementation such > as title keys is irrelevant beyond this point. > But authorisation of players is granted by the DVDCCA. They are not the copyright holders of the DVD content. > > The reading here is that CSS is a "procees or treatment" that > must be applied _with_the_authority_of_the_copyright_owner. > > DeCSS does not have that authority. > I guess I am having difficulty seeing where the copyright holder is denying the right to access the DVD content on non-licensed players (let alone whether or not they actually have the right to specify how the content is accessed). It appears to me that the right to use CSS is granted by the DVDCCA to the player manufacturers and to the movie studios. But the DVDCCA is not the copyright holder. (If I'm being completely thick and missing the point, please feel free to e-mail me privately.) -- Phil Harrison From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 3 20:52:34 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA07821 for dvd-discuss-outgoing; Thu, 3 Aug 2000 20:52:34 -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 UAA07818 for ; Thu, 3 Aug 2000 20:52:33 -0400 Received: from mail.dfrc.nasa.gov by mailhub.dfrc.nasa.gov with ESMTP; Thu, 3 Aug 2000 17:51:52 -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, 3 Aug 2000 17:51:49 -0700 Message-Id: <4.1.20000803174445.00a021a0@mail.dfrc.nasa.gov> X-Sender: richard_hecker@mail.dfrc.nasa.gov X-Mailer: QUALCOMM Windows Eudora Pro Version 4.1 Date: Thu, 03 Aug 2000 17:58:13 -0700 To: dvd-discuss@eon.law.harvard.edu From: "Richard A. Hecker" Subject: Re: [dvd-discuss] copyleft subpoenad Mime-Version: 1.0 Content-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 does set up a "slippery slope" arguement: The MPAA has consistently >> > tried to apply the proceedings to non-parties, >> >> According a slashdot posting that appears to be from one of the Copyleft >> people, this is part of the California case, i.e. it's the DVDCCA, not the >> MPAA. >That may very well be, but don't for a second believe that this action against >Copyleft isn't related to the NY case. Go read the judge's final words at the end >of the trial closely. He is sending a clear message to the plantiff's: he has pretty >much bought David Touretsky's testimony, so whatever remains of the plantiff's >case *must* proceed from this assumption. The MPAA probably had no choice >but to take a position that indeed all the "forms of expression" that he showed in >his DeCSS gallery must also indeed be illegal, as this appears to be a necessary >precondition before the Judge could find in favor of the plantiffs. Call me a pragmatic programmer, but I did notice the date on the scanned images shows July 18 which was before the David Touretsky testimony by my calendar ;-) 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 Aug 3 21:23:05 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA09475 for dvd-discuss-outgoing; Thu, 3 Aug 2000 21:23:05 -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 VAA09472 for ; Thu, 3 Aug 2000 21:23:04 -0400 Message-ID: <20000804012221.344.qmail@web513.mail.yahoo.com> Received: from [64.81.25.37] by web513.mail.yahoo.com; Thu, 03 Aug 2000 18:22:21 PDT Date: Thu, 3 Aug 2000 18:22:21 -0700 (PDT) From: Bryan Taylor Subject: [dvd-discuss] DeCSS: No title keys, no descrambling, no (a)(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 The title key is the authority of the copyright holder to access the contents protected by title key encryption. This key is purchased when the DVD is purchased. Distributing devices that contain title keys would therefore be illegal under (a)(2), but ones that don't are not. DeCSS cannot decrypt .vob files without application of the title key with the authority of the copyight holder, which it verifies by authenticating the DVD drive and removing the title key from the media that it was purchased on. Any device which does not contain title keys is not able to descrambling the movie on a DVD. While it might become capable of doing this by application of the title key information, until this happens such a device cannot be considered actionable under (a)(2). DeCSS is not distributed with title keys, and therefore immune to causes of action under (a)(2). __________________________________________________ Do You Yahoo!? Kick off your party with Yahoo! Invites. http://invites.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 3 21:23:40 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA09490 for dvd-discuss-outgoing; Thu, 3 Aug 2000 21:23:40 -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 VAA09487 for ; Thu, 3 Aug 2000 21:23:39 -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 VAA14136 for ; Thu, 3 Aug 2000 21:23:26 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id VAA27347; Thu, 3 Aug 2000 21:23:25 -0400 (EDT) Date: Thu, 3 Aug 2000 21:23:25 -0400 (EDT) Message-Id: <200008040123.VAA27347@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] (revised) LOC comment draft up In-Reply-To: <200008031950.PAA25616@soggy-fibers.ai.mit.edu> References: <200008031950.PAA25616@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: > I got itchy fingers. There's a draft of a modified authority paper, > intended for LOC sumbission, at > > HTML: http://www.ai.mit.edu/people/rst/dmca/loc-copy/loc-copy.html > Postscript: http://www.ai.mit.edu/people/rst/dmca/loc-copy.ps > Plaintext: http://www.ai.mit.edu/people/rst/dmca/loc-copy.txt Revised version now up; most of the changes are in response to comments here, hopefully addressing *most* of the problems that folks pointed out. Also, PDF at: http://www.ai.mit.edu/people/rst/dmca/loc-copy.pdf Unidiff between this and the previous version follows: --- loc-copy.tex.pub1 Thu Aug 3 20:05:54 2000 +++ loc-copy.tex Thu Aug 3 21:03:21 2000 @@ -3,10 +3,11 @@ \setlength{\topsep}{0in} \setlength{\textheight}{9in} \begin{document} -\title{``Authority of the copyright owner'' in 1201(a)} +\title{``Authority of the copyright owner'' in 1201(a), and First Sale} \author{Robert S. Thau and Bryan Taylor} \maketitle +\newpage \tableofcontents \subsection*{Acknowledgments} This paper is the result of discussions on the \texttt{dvd-discuss} @@ -20,16 +21,16 @@ The Digital Millenium Copyright Act gave copyright holders remarkable new powers to regulate the content of their works, which have raised -concerns that the traditional balance in the law between the rights -granted to copyright holders and the public interest. These concerns -might be allayed somewhat if the copyright holders were carefully -staying within the bounds and intent of the law. However, that seems -not to be the case. In one of the first trials under the law, -Universal v. Corley (one of the so-called ``DeCSS cases''), the -copyright holders have adopted a broad, sweeping view of their powers -under the law --- far more sweeping than anything envisioned by -Congress, as they themselves described the intent of the law they -passed in their debates and their reports. +concerns that the traditional balance in the law --- between the +rights granted to copyright holders and the public interest --- is +being eroded. These concerns might be allayed somewhat if the +copyright holders were carefully staying within the bounds and intent +of the law. However, that seems not to be the case. In one of the +first trials under the law, Universal et al. v. Corley (one of the +so-called ``DeCSS cases''), the copyright holders have adopted a +sweeping view of their powers under the law; indeed, a view far more +broad than anything envisioned by the members of Congress as described +the intent of the law in their debates and reports. Specifically, the plaintiff's case in Universal et al. v. Corley relies on an interpetation of the Digital Millenium Copyright Act @@ -44,10 +45,10 @@ with Circuit City, and marketed to consumers under the name ``Divx'') which actually checked the authority of a particular viewer to view works distributed on DVD disk. However, the ``Content Scrambling -System'' supposedly ``hacked'' by the defendants in this case performs -no such check --- a CSS-enabled player will view {\em any} CSS -formatted DVD without performing any check that the user is authorized -to view it. +System'' (supposedly ``hacked'' by the authors of the program at issue +in this case) performs no such check; a CSS-enabled player will view +{\em any} CSS formatted DVD without performing any check that the user +is authorized to view it. Further, the plaintiffs are claiming a right to impose arbitrary conditions on the implementation of the CSS technology, via the @@ -162,7 +163,7 @@ (Universal v. Corley, Johansen testimony, p. 619 of the trial transcript). -\subsection{The non-threat of piracy} +\subsection{The ``threat'' of piracy} The movie studios have claimed, in submissions in Universal v. Corley and elsewhere, that CSS is part of a copy-control regime which is @@ -249,29 +250,35 @@ Mr. Ramadge's examples was to make the files small enough to fit on a conventional Compact Disk (CD), about 650 megabytes. Extrapolating from experiments performed by Ole Craig, a witness for the defense, a -file the size of a CD would take more than two hours to transmit over -a dedicated T1 line, to another computer which was very close in -internet topology. The effective bandwidth available through even a -fast home internet connection (e.g., DSL) is generally much less, and -DSL connections are still relatively rare. The plaintiffs note that -higher bandwidth is available to researchers at some universities, but -those are for supervised research and do not go, say, to the dorms. -(Declaration of Olevario Craig, Universal v. Corley). Very few -people, no matter how ill their will, would have the patience to sit -still for hours to receive a poor-quality copy of a movie over the -Internet, when the price for renting the high-quality original, with -all its extras, is nominal. +file the size of a CD would take more than three hours to transmit +over a dedicated T1 line, to another computer which was very close in +internet topology. (Craig's experiment involved transferring a 1.5 +gigabyte file, which took over seven hours; prorating to the smaller +file at issue here is simple arithmetic). The effective bandwidth +available through even a fast home internet connection (e.g., DSL) is +generally much less, and DSL connections are still relatively rare. +The plaintiffs note that higher bandwidth is available to researchers +at some universities, but those are for supervised research and do not +go, say, to the dorms. (Declaration of Olegario Craig, Universal +v. Corley). Very few people, no matter how ill their will, would have +the patience to sit still for hours to receive a poor-quality copy of +a movie over the Internet, when the price for renting the high-quality +original, with all its extras, is nominal. Lastly, it is worth noting that those who desire to obtain a digital copy of the video data on DVD, for whatever reason, have other tools available (e.g., ``DOD speed ripper''). At trial, the MPAA's head of antipiracy efforts, Mikhail Reider, claimed, unconvincingly, not to -remember hearing of those tools. (Universal v. Corley transcript, -Reider testimony, p. 680). Yet, while the movie studios have filed not -one, but three separate lawsuits seeking to enjoin distribution of -DeCSS, in three different states, they have not taken any legal action -at all against distribution of these other tools, which facilitate -``Internet piracy'' in the exact same manner as DeCSS. +remember hearing of those tools (Universal v. Corley transcript, +Reider testimony, p. 680), but they were clearly available before +DeCSS; at trial, one of the authors of DeCSS described how he examined +such a tool in the course of his work. (Universal v. Corley +transcript, Johansen testimony, p. 623). Yet, while the movie studios +have filed not one, but three separate lawsuits seeking to enjoin +distribution of DeCSS, in three different states, they have not taken +any legal action at all against distribution of these other tools, +which facilitate ``Internet piracy'' in the exact same manner as +DeCSS. So, DeCSS rates three lawsuits, and ``speed ripper'' not even one. A reasonable person might conclude that DeCSS threatens the movie @@ -291,8 +298,8 @@ so-called DVD Copy Control Authority) for a license. Indeed, as we have already noted, testimony at the trial has established that that is why it was written, and one of the authors has received a -prestigious prize for the work. (Universal v. Corley transcript, -Johansen testimony, pp. 616-627). +prestigious national prize for the work. (Universal v. Corley +transcript, Johansen testimony, p. 627). It is this sort of activity --- making a legitimate DVD player, not ``Internet piracy'' ---- which will be most directly affected by a @@ -585,9 +592,13 @@ access control'' --- that an effective access control measure is one that ``requires the application of information, or a process or treatment, with authority of the copyright owner, to gain access to -the work'' --- makes no specfic reference to encryption, and indeed, -as we have seen, it is perfectly possible to have an access control -measure which does not encrypt the work it protects. +the work'' --- makes no specfic reference to encryption. Instead, as +we shall discuss in detail, it requires that the technological measure +so described have a particular {\em effect}. As we have already seen, +it is perfectly possible to have an access control measure which does +not encrypt the work it protects; conversely, it is possible to employ +encryption technology for purposes such as electronically signing +documents, which have nothing to do with access control. But rather than relying on Mr. Gold's perhaps hasty and off-the-cuff remarks, let's examine a more elaborate version of this argument, from @@ -757,8 +768,10 @@ provisions of the DMCA. If a copyright owner wants to exercise their right to control access to a published work via technical measures, granted by 1201, all the First Sale doctrine requires is that they -provide a license agreement notifying the purchaser of what they are -doing, which seems only fair. +provide a license agreement in a manner which notifies the purchaser +of the restrictions on what they have purchased, and allow for +returning the product if they don't like the terms. That seems only +fair. But, on the plaintiffs' reading of the law, such a conflict clearly exists. @@ -1521,6 +1534,8 @@ specifically designed to grant unauthorized access, and would not cover any device with a legitimate purpose. +\enlargethispage{0.25 in} + The interpretation of the law adopted by the MPAA stands this balance on its head. The plaintiffs are asserting an absolute right to control the manufacture of {\em any} machinery which is capable of @@ -1532,6 +1547,6 @@ players artificially unable to view films from outside ``region 1'', the U.S. and Canada), and so to artificially restrain trade. This is not about piracy, it is about control. It should not, and cannot -stand. +stand. \end{document} From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 3 21:37:30 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA10297 for dvd-discuss-outgoing; Thu, 3 Aug 2000 21:37:30 -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 VAA10294 for ; Thu, 3 Aug 2000 21:37:29 -0400 Message-ID: <20000804013646.1974.qmail@web513.mail.yahoo.com> Received: from [64.81.25.37] by web513.mail.yahoo.com; Thu, 03 Aug 2000 18:36:46 PDT Date: Thu, 3 Aug 2000 18:36:46 -0700 (PDT) From: Bryan Taylor Subject: [dvd-discuss] My personal submission to the Copyright Office To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-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 had a burst of creativity this morning and decided to supplement my contribution to the submission spearheaded by Robert with a second, shorter comment to the Copyright Office. Since this is a 12th hour creation, I'll submit it purely under my own name. Here's the link to what I wrote: http://bioinformatics.ucsf.edu/bwtaylor/dvd/LOC_109_RFC.txt Comments are welcome, but please don't let this distract from the more comprehensive submission that we've been working on. __________________________________________________ Do You Yahoo!? Kick off your party with Yahoo! Invites. http://invites.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 3 21:53:27 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA11081 for dvd-discuss-outgoing; Thu, 3 Aug 2000 21:53:27 -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 VAA11078 for ; Thu, 3 Aug 2000 21:53:26 -0400 From: Consilgere@cs.com Received: from Consilgere@cs.com by csimo01.mx.aol.com (mail_out_v27.12.) id x.15.77b847d (4366) for ; Thu, 3 Aug 2000 21:52:36 -0400 (EDT) Message-ID: <15.77b847d.26bb7be0@cs.com> Date: Thu, 3 Aug 2000 21:52:32 EDT Subject: Re: [dvd-discuss] first amendment defense 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 That comment does serve a function. That doesn't mean the source code it's in is speech. There are plenty of machines built to manipulate other machines. Look in an automobile factory. From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 3 23:25:02 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA12780 for dvd-discuss-outgoing; Thu, 3 Aug 2000 23:25:02 -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 XAA12777 for ; Thu, 3 Aug 2000 23:25:01 -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 WAA16313 for ; Thu, 3 Aug 2000 22:24:30 -0500 Message-ID: <398A38EE.C6177F55@mninter.net> Date: Thu, 03 Aug 2000 22:30:54 -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: <5A8391CA2D9ED311AFAA080009D982B10B1DA7@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 To concatenate: > Richard Hartman wrote: > Granted. But it is an implementation created "without the > authority of the copyright owner", and therein lies the issue. This notion is contradicted in caselaw, congressional intent of 1201, 1201 itself, and constitutionally. Just because the plaintiffs may assert they have this right does not mean that they do. > > This is because either the authority to access is conveyed within > > the CSS system, > No. Only the plaintiffs have this knowledge. > > If authorization is external to the CSS system, no CSS > > implementation is capable of distinguishing whether access is > > authorized or not. > But that _does_not_matter_. Not to the legal issue of > whether the access was authorized or not. But you miss my next statement about how every CSS device is necessarily equally capable of circumvention. That's the point. It *does* matter that DeCSS is no different in use or purpose than any other implementation. That's the definition of a circumvention device. If the copyright holder conveys authority external to the access control measure, we reach the mind-bending conclusion that every CSS implementation succumbs to 1201(a)(2) This is fraud, copyright misuse, blah, blah, blah. Not to mention just plain ludicrous. We've heard it a million times. But it isn't NECESSARY. It is only presumed by the plaintiffs. Far more consistant with congressional intent and everything we hold dear that authority is evaluated by the access control measure by presense of the approprite disk key, and all implementations are necessarily protected by 1201. Save the determinations of authority for the times when access is made with an ill-gotten key, or when CSS is fooled in to giving access when it should not. Simple. Easy. > Because the line of argument that asserts that authority is implicit > in the existance of an implementation is fundamentally flawed. Au contraire, it is the Grand Unified Defense of DeCSS that exists happily with 1201. Much preferable to a questionable reading of 1201 that attacks it for weaknesses in the plaintiff's interpretation, yet makes no defense of the act in question. At least use both, right? There is no law against rigor. ------------------------------------- >From another thread: > Who said I got the key from somebody with authority? I could've > just read it from a memo lying open on his desk. Careless of > him perhaps, but it doesn't grant me the authority to use that > key. I don't think you read what I wrote. I said that the key conveys authority if it was given by the authorized. The memo pad was not authorized to give you authority. It's a bit metaphysical, yes, but so what? Metaphorically, the key has an authority bit, and either that bit is on because if was conveyed appropriately, or it is off because it was not. Not too hard to grasp. >From where you got the key determines if the key conveys authority to use it. > No, it is more like you leaving the keys on the dining room > table. No, that's not true. Are you suggesting the disk keys were put on my DVDs absentmindedly? "Whoops, didn't mean to put those on there!" > And whether you told him he could use the car or not, if > he is under age he needs authority from an alternate source > (the state). Just because you can take a simple analogy and extrapolate it until it doesn't fit its purpose doesn't make your point. Meaning: I don't see how this is relevant. > This applies whether or not CSS is involved, so what > does CSS contribute? Nothing. Except a hook onto which to hang > the unexpiring control of a work that would not otherwise be > attainable. Only in your tainted view of 1201. I still think that approached in the right way, it can be a meaningful law. Just because it can be misread doesn't mean it is fundamentally unsound. It doesn't *necessarily* break all the bounds of the constitution, anti-trust, copyright and reason. Just when the plaintiffs try to interpret it to their ends. It ain't necessarily so. CSS can be a perfectly fine 1201 access control measure... that grants access on a regular basis. So what? If I subscribe to HBO, can I say that Dish Network's access control measure is invalid because I always have access? No! On the other hand, if Dish Network's access control measure is not patented, can I reverse engineer and implement it? Yes! My implementation would be no more capable of circumvention than Dish Network's. > The trouble is that there are other sources of authority which this > law is not taking into account (despite the clause stating that it > can not be read to exclude that authority). I think that is a trouble with the plaintiff's idea of the law, not with the law itself. The rulings in this case will imbue substance to the intangible concepts in 1201, and yes that substance could be violative of everything we know about everything... but more likely, with the right argument, DeCSS will find its place defending the rights of engineers and manufacturers to create implementations of access control mechanisms without the "authority" of the copyright holder hanging over their heads. Because it obviously doesn't belong there and it wasn't put there by 1201, despite what you keep saying. The plaintiffs are trying to duct tape it up there in Judge Kaplan's court, but it will not stick. ------------------------------------------------- Lastly: > You are wasting your time trying to assert an interpretation > of the conveyance of authority by technical means if it is > just to conform to 1201 as it is written. I always figured that a sound interpretation of a law, an interpretation that conforms with copyright, the constitution, congressional intent and prior case law, would be preferrable to an assertion that the law is a hopeless tangle all because of our plaintiff's misreading. It's possible that Corley can win AND 1201 can stand. That doesn't mean it can't be abused by copyright holders in other ways; but those other ways will see their days in court, too. Like I say, though, it all depends on where the plaintiffs believe they give us authorization to access the copies on our DVDs. One makes sense, the rest will cause them trouble. Authorization remains the missing piece of the puzzle that can exonerate 1201 or will damn it. I'm just trying to ensure that it is clear that: **DeCSS is no more or less a 1201(a)(2)(A) or (a)(2)(B) circumvention device than every other CSS implementation.** I see this as a key to defending DeCSS from 1201(a)(2). -- moseng@mninter.net I use PGP 6.5.3 -- http://www.underwhelm.org/pgp From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 3 23:46:15 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA13145 for dvd-discuss-outgoing; Thu, 3 Aug 2000 23:46:15 -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 XAA13142 for ; Thu, 3 Aug 2000 23:46:04 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id XAA22997 for dvd-discuss@eon.law.harvard.edu; Thu, 3 Aug 2000 23:50:50 -0400 Date: Thu, 3 Aug 2000 23:50:45 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] revised first sale discussion Message-ID: <20000803235045.A22732@eldritchpress.org> References: Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: ; from Ray@clearway.com on Thu, Aug 03, 2000 at 05:07:28PM -0400 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, Aug 03, 2000 at 05:07:28PM -0400, Leland Ray wrote: > > > Eric Eldred wrote: > > > >In the case of Circuit City Divx, no doubt the technology was > >strong enough so that it was not cracked. > > I think had Divx reached the same widespread use that DVDs > enjoy, it might very well have been cracked. The point is, > until technology reaches a critical mass its just not > interesting enough to look at. > > > This is a whole point that was not really explored at trial > (what I would have liked to see in a closing argument), > the reason movies started appearing on the internet, and the > reason why DeCSS, and all the various DVD utilities > are developed is because the technology is now widespread > enough that there is a market for these additional > products. Good point. Whether or not it might have been cracked is more likely a time/cost problem than a technical one. One might infer that MPAA is trying to assert control here right at the start "to establish a lesson for potential circumvention in the future." Once they establish control then they can go on to do other nifty things such as price discriminate for "added value" in just they way they tried to do with Divx, but only after the market is well established first. From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 4 09:09:26 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA18131 for dvd-discuss-outgoing; Fri, 4 Aug 2000 09:09:26 -0400 Received: from hotmail.com (f5.law9.hotmail.com [64.4.9.5]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id JAA18128 for ; Fri, 4 Aug 2000 09:09:25 -0400 Received: from mail pickup service by hotmail.com with Microsoft SMTPSVC; Thu, 3 Aug 2000 21:44:17 -0700 Received: from 38.30.242.171 by lw9fd.law9.hotmail.msn.com with HTTP; Fri, 04 Aug 2000 GMT X-Originating-IP: [38.30.242.171] From: "Harold Eaton" To: dvd-discuss@eon.law.harvard.edu Subject: RE: [dvd-discuss] the definition of 'Circumvention' Date: Fri, 04 Aug 2000 00:44:17 EDT Mime-Version: 1.0 Content-Type: text/plain; format=flowed Message-ID: X-OriginalArrivalTime: 04 Aug 2000 04:44:17.0732 (UTC) FILETIME=[A5DA9840:01BFFDCE] Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Richard Hartman > > Well, not really. Remember who gave us the keys? Would you have been > > given the key by the person with authority if they didn't mean for you > > to access what's behind the lock with their authorization? > >Who said I got the key from somebody with authority? I could've >just read it from a memo lying open on his desk. Careless of >him perhaps, but it doesn't grant me the authority to use that >key. > > >It > > is like me > > giving my kid the keys to the car, but calling the police five minutes > > later and telling them he was driving it without my authorization. > >No, it is more like you leaving the keys on the dining room >table. I'm sorry, this is a very poor analogy. I was sold those keys by the copyright holder and it is very easy for me to prove that they sold them to me. If a Burger King sells you a hamburger, are you AUTHORIZED to eat it? If there were some other legal stricture on a movie-key use (such as minimum age), presumably I would have to have met that test at the time of sale. ________________________________________________________________________ Get Your Private, Free E-mail from MSN Hotmail at http://www.hotmail.com From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 4 09:11:14 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA18208 for dvd-discuss-outgoing; Fri, 4 Aug 2000 09:11:14 -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 JAA18167 for ; Fri, 4 Aug 2000 09:11:02 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id AAA23073 for dvd-discuss@eon.law.harvard.edu; Fri, 4 Aug 2000 00:22:35 -0400 Date: Fri, 4 Aug 2000 00:22:29 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] the definition of 'Circumvention' Message-ID: <20000804002229.C22732@eldritchpress.org> References: <5A8391CA2D9ED311AFAA080009D982B10B1DA7@mail2.onetouch.com> <398A38EE.C6177F55@mninter.net> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <398A38EE.C6177F55@mninter.net>; from moseng@mninter.net on Thu, Aug 03, 2000 at 10:30:54PM -0500 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, Aug 03, 2000 at 10:30:54PM -0500, Chris Moseng wrote: >... > Like I say, though, it all depends on where the plaintiffs believe they > give us authorization to access the copies on our DVDs. One makes sense, > the rest will cause them trouble. Authorization remains the missing > piece of the puzzle that can exonerate 1201 or will damn it. I'm just > trying to ensure that it is clear that: > > **DeCSS is no more or less a 1201(a)(2)(A) or (a)(2)(B) circumvention > device than every other CSS implementation.** > > I see this as a key to defending DeCSS from 1201(a)(2). Well, I don't think Richard is saying that DeCSS can't be defended, he does say that 1201 taken as a whole is contradictory and neither your explanation nor plantiffs' can rescue it. (Please correct me if I misread the lengthy comments in this debate.) What I worry about from reading Richard's comments, though, is whether or not Judge Kaplan will somehow leap on the idea that the *player* keys were stolen, and it is the authorization of those, via the DVD-CCA authority and thus indirectly from the copyright holder's authority, that allows access under 1201. Because the player keys don't come from the disc, only the title keys do, right? And Kaplan might imagine that DeCSS (or MoRE) stole the player keys. Even then, DeCSS can be defended because possession of the disc with the title keys ought to be enough under first sale and fair use. And if Kaplan takes this interpretation we have already seen it raises a host of other problems that can be asserted on appeal. I don't want to tear down this structure we have built together in this group. But I still feel that we should not be trying to find some reasonable interpretation of 1201 even if DeCSS is legal under it. The act is too flawed, and a "shotgun" defense is hazardous unless we can be sure to cover every possibility adequately. If plaintiffs were required to supply the explanation it would be different. From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 4 09:16:55 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA18440 for dvd-discuss-outgoing; Fri, 4 Aug 2000 09:16:55 -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 JAA18435 for ; Fri, 4 Aug 2000 09:16:54 -0400 Received: (from jfb@localhost) by emperor.hwrd1.md.home.com (8.9.3/8.9.3) id AAA24850; Fri, 4 Aug 2000 00:03:48 -0400 Date: Fri, 4 Aug 2000 00:03:48 -0400 From: Jim Bauer Message-Id: <200008040403.AAA24850@emperor.hwrd1.md.home.com> To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] first amendment defense 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 Consilgere@cs.com wrote: >A set of instructions shouldn't fall under a copyright. It should fall under >a patent. > So, cookbooks should be patented? -- Jim Bauer, jfbauer@home.com From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 4 09:16:56 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA18447 for dvd-discuss-outgoing; Fri, 4 Aug 2000 09:16:56 -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 JAA18439 for ; Fri, 4 Aug 2000 09:16:54 -0400 Received: (from jfb@localhost) by emperor.hwrd1.md.home.com (8.9.3/8.9.3) id AAA24868; Fri, 4 Aug 2000 00:07:09 -0400 Date: Fri, 4 Aug 2000 00:07:09 -0400 From: Jim Bauer Message-Id: <200008040407.AAA24868@emperor.hwrd1.md.home.com> To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] first amendment defense 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 Consilgere@cs.com wrote: >You can write dit dah dah dit dit... but the speech is what's being >protected. Who speaks it is irrelevant. > >Im no expert in NY law. Im not from there. But that doesnt change the fact >that you need a warrant to use Carnivore. And on top of that, the ISP its >attached to has to request its use. I couldnt tell you if that's policy or >law, but its a minor distinction. It has all the same safeguards as >ordinary, run of the mill wiretaps. No, the ISP is told "you will attached this box, that you can't examine, to your networks or else". -- Jim Bauer, jfbauer@home.com From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 4 09:17:31 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA18517 for dvd-discuss-outgoing; Fri, 4 Aug 2000 09:17:31 -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 JAA18513 for ; Fri, 4 Aug 2000 09:17:30 -0400 Received: from localhost (ssyreeni@localhost) by kruuna.Helsinki.FI (8.10.1/8.10.1) with ESMTP id e748JZU07735 for ; Fri, 4 Aug 2000 11:19:35 +0300 (EET DST) X-Authentication-Warning: kruuna.Helsinki.FI: ssyreeni owned process doing -bs Date: Fri, 4 Aug 2000 11:19:34 +0300 (EET DST) From: Sampo A Syreeni To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] the definition of 'Circumvention' In-Reply-To: <5A8391CA2D9ED311AFAA080009D982B10B1DA4@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, 3 Aug 2000, Richard Hartman wrote: >Likewise, DeCSS gives you access to the DVD "vault", >but unauthorized access _in_their_authorisation_model_. > >The fact that it is an "implementation" does not >convey authority to use that implementation. I think the point that lead us to discuss implementations vs. exploits was that from the earlier viewpoint, it is much easier to argue that DeCSS qualifies for the RE exception. In this case it doesn't much matter that the access is unauthorized - I'm sure there are conditions in which unauthorized access to a missile vault will be unprocecutable nevertheless. $.02... Sampo Syreeni , aka decoy, student/math/Helsinki university From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 4 09:17:33 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA18526 for dvd-discuss-outgoing; Fri, 4 Aug 2000 09:17:33 -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 JAA18516 for ; Fri, 4 Aug 2000 09:17:31 -0400 Received: from localhost (ssyreeni@localhost) by kruuna.Helsinki.FI (8.10.1/8.10.1) with ESMTP id e7482Lf05220 for ; Fri, 4 Aug 2000 11:02:22 +0300 (EET DST) X-Authentication-Warning: kruuna.Helsinki.FI: ssyreeni owned process doing -bs Date: Fri, 4 Aug 2000 11:02:20 +0300 (EET DST) From: Sampo A Syreeni To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] first amendment defense In-Reply-To: <5A8391CA2D9ED311AFAA080009D982B10B1D9E@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, 3 Aug 2000, Richard Hartman wrote: >The power wielded by the state may be illegitimate despite >the people continuing to allow it. The Third Reich immediately springs to mind. But then the question is, illegitimate under what law? A divine one? I sure hope not. Sampo Syreeni , aka decoy, student/math/Helsinki university From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 4 09:39:42 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA19195 for dvd-discuss-outgoing; Fri, 4 Aug 2000 09:39:42 -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 JAA19192 for ; Fri, 4 Aug 2000 09:39:41 -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 IAA29481; Fri, 4 Aug 2000 08:45:35 -0400 (EDT) Message-Id: <4.1.20000804064911.023f3ba0@law.harvard.edu> X-Sender: wseltzer@pop.bellatlantic.net X-Mailer: QUALCOMM Windows Eudora Pro Version 4.1 Date: Fri, 04 Aug 2000 08:46:02 -0400 To: dvd-discuss@eon.law.harvard.edu From: Wendy Seltzer Subject: Re: [dvd-discuss] (revised) LOC comment draft up Cc: rst@ai.mit.edu In-Reply-To: <200008040123.VAA27347@soggy-fibers.ai.mit.edu> References: <200008031950.PAA25616@soggy-fibers.ai.mit.edu> <200008031950.PAA25616@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 09:23 PM 08/03/2000 -0400, Robert S. Thau wrote: >Robert S. Thau writes: > > I got itchy fingers. There's a draft of a modified authority paper, > > intended for LOC sumbission, at > > > > HTML: http://www.ai.mit.edu/people/rst/dmca/loc-copy/loc-copy.html > > Postscript: http://www.ai.mit.edu/people/rst/dmca/loc-copy.ps > > Plaintext: http://www.ai.mit.edu/people/rst/dmca/loc-copy.txt General comments: The "additional questions" are very effective. I'd switch most references to "plaintiffs" to "movie studios," since this isn't directed at the court. Specific suggestions on lines from the numbered text version 22 The Digital Millenium Copyright Act gave copyright holders remarkable 23 new powers to regulate the content of their works, which have raised new powers to regulate the use of their works, raising 116 Licensees are required to obey numerous conditions on their use of the 117 CSS technology by the terms of the license. These conditions include by the terms of the non-public license. These conditions include 713 longer applies in the case of DVDs. They believe that they retain 714 authority over how a work on DVD may be lawfully displayed, because 715 that display is only lawful when it is performed, in Mr. Marks' words, 716 on ``a licensed device'' --- licensed by them, via their agents, the 717 DVDCCA. And if all such devices implement some measure which DVDCCA -- despite the fact that neither the studios nor their agents ever announce this requirement to the DVD purchaser. 697 (which clearly does not exist in the case of DVDs). It states that 698 when a copy of a published work is sold, the purchaser acquires all 699 rights other than those listed in 17 USC 106 as exclusive rights of 700 the copyright owner. In fact, 17 USC 109(c) specifically provides 701 that the right to privately display the work is transferred. Add: Moreover, the copyright owner 727 (In his colloquy with Mr. Carson of the LOC, Mr. Marks acknowledged 728 that ``the technological protection measure is not only dealing with 729 access, but also with subsequent uses of the content'' --- see the 730 transcript of the LOC hearing at Stanford, p. 261). Take off the parens. Add: We and numerous others from libraries, universities, and the public objected at those proceedings to the imposition of persistent use controls in the guise of 1201(a) access controls. 750 DVD. Note that if surrendering display rights as per first sale is 751 not to the taste of certain copyright owners (including, evidently, 752 the movie studios), the law does give them an option: they may sell the movie studios), the law does give them an option: they may license, rather than sell 753 their works, as is commonly done with software, pursuant to an 754 explicit license agreement which imposes whatever additional 755 restrictions are to their taste; contract law, then, rather than 756 copyright law applies. And such a model of sales would impose scant copyright law, should apply. And such a model would impose scant [It's not 100% clear that copyright law, pursuant to the distribution right, wouldn't apply.] 765 Incidentally, the prospect of communicating restrictions by license 766 agreement eliminates any appearance of conflict between 17 USC 109, agreement could largely eliminate apparent conflict between 17 U.S.C. 109, [tone it down a bit, because at least some of these licenses might be open to the challenge that they asserted rights the copyright owners did not have, and were thus preempted by copyright law.] 786 just the {\em act} of access, but the {\em means}. They are suing 787 because DeCSS threatens to allow DVD purchases to access the works 788 they have purchased via means which they have not authorized 789 (specifically, DeCSS itself). They are suing because DeCSS threatens to allow DVD purchasers to develop their own technologies and devices -- competing DVD players -- to access the works they have purchased. Not sure that the middle part of the "Encryption not required" section adds to the discussion. Consider cutting lines 791-834 and adding the first and last paragraph to the top of the following section. 1195 Finally, let us try to relate the new right the plaintiffs are 1196 claiming to the Constitution. What the plaintiffs are claiming, once 1197 again, is a patent-like power to regulate the manufacture of players 1198 which perform their ``access control'' process. Constitutional Finally, the movie studios' claimed rights of access control break the constitutional balance between the copyright holder's limited monopoly and public access to information. What the plaintiffs are claiming, once again is both a patent-like power to regulate the manufacture of players which perform their ``access control'' process and a total monopoly on the use of content they are ostensibly publishing. 1216 The form of protection must be appropriate --- authors are granted 1217 protections for their works, but not inventions, and inventors protections for the expressive content of their works, but not for their ideas, functional elements, or inventions. Inventors get 1218 protection for inventions, but not copyrightable works. Add: Moreover, this protection is in exchange for public disclosure, through fair use rights in copyrighted works or the enabling disclosure of a patent application. 1257 \begin{quotation} Should be \begin{verbatim} [and law firms should switch to LaTeX....] 13 This paper is the result of discussions on the \texttt{dvd-discuss} 14 mailing list run by the Berkman Center at Harvard University, and has mailing list, part of the Openlaw forum of the Berkman Center for Internet & Society at Harvard Law School, and has Great work! --Wendy --- Wendy Seltzer wendy@seltzer.com Fellow, Berkman Center for Internet & Society at Harvard Law School http://cyber.law.harvard.edu/seltzer.html From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 4 10:42:24 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA22701 for dvd-discuss-outgoing; Fri, 4 Aug 2000 10:42:24 -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 KAA22698 for ; Fri, 4 Aug 2000 10:42:22 -0400 Received: from sites.inka.de (puric.inka.de [212.227.14.17]) by mail.inka.de with esmtp id 13Kbt2-0005Vi-00; Fri, 4 Aug 2000 09:27:20 +0200 Received: from localhost by sites.inka.de with local id 13Kbt4-0004bW-00; Fri, 4 Aug 2000 09:27:22 +0200 Date: Fri, 4 Aug 2000 09:27:22 +0200 From: Sham Gardner To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] copyleft subpoenad Message-ID: <20000804092721.A17578@inka.de> References: <4.1.20000803174445.00a021a0@mail.dfrc.nasa.gov> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0i In-Reply-To: <4.1.20000803174445.00a021a0@mail.dfrc.nasa.gov>; from richard.hecker@dfrc.nasa.gov on Thu, Aug 03, 2000 at 05:58:13PM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, Aug 03, 2000 at 05:58:13PM -0700, Richard A. Hecker wrote: > Call me a pragmatic programmer, but I did notice the date on the scanned > images > shows July 18 which was before the David Touretsky testimony by my calendar ;-) What scanned images? I know postings on slashdot said they'd be up at some point, but where are they? Sham -- http://sites.inka.de/risctaker/DeCSS/ "The first speech censored, the first thought forbidden, the first freedom denied, chains us all irrevocably." (Jean-Luc Picard) From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 4 11:25:21 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA24352 for dvd-discuss-outgoing; Fri, 4 Aug 2000 11:25:21 -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 LAA24349 for ; Fri, 4 Aug 2000 11:25:20 -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 LAA05396 for ; Fri, 4 Aug 2000 11:25:10 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id LAA29587; Fri, 4 Aug 2000 11:25:08 -0400 (EDT) Date: Fri, 4 Aug 2000 11:25:08 -0400 (EDT) Message-Id: <200008041525.LAA29587@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] (revised) LOC comment draft up In-Reply-To: <200008040123.VAA27347@soggy-fibers.ai.mit.edu> References: <200008031950.PAA25616@soggy-fibers.ai.mit.edu> <200008040123.VAA27347@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: > Robert S. Thau writes: > > I got itchy fingers. There's a draft of a modified authority paper, > > intended for LOC sumbission, at > > > > HTML: http://www.ai.mit.edu/people/rst/dmca/loc-copy/loc-copy.html > > Postscript: http://www.ai.mit.edu/people/rst/dmca/loc-copy.ps > > Plaintext: http://www.ai.mit.edu/people/rst/dmca/loc-copy.txt > > Revised version now up; most of the changes are in response to > comments here, hopefully addressing *most* of the problems that folks > pointed out. Also, PDF at: > > http://www.ai.mit.edu/people/rst/dmca/loc-copy.pdf Well, it's sent; the web version now reflects what got sent to the LOC. Unidiff against the previous version follows, for those interested in a post-mortem: --- loc-copy.tex.pub2 Thu Aug 3 21:03:31 2000 +++ loc-copy.tex.pub3 Fri Aug 4 11:00:47 2000 @@ -11,16 +11,17 @@ \tableofcontents \subsection*{Acknowledgments} This paper is the result of discussions on the \texttt{dvd-discuss} -mailing list run by the Berkman Center at Harvard University, and has -benefitted immensely from the insights of those on the list. All -flaws are, of course, solely the fault of the authors. +mailing list, part of the Openlaw forum of the Berkman Center for +Internet and Society at Harvard Law School, and has benefitted +immensely from the insights of those on the list. All flaws are, of +course, solely the fault of the authors. \newpage \section{Introduction} The Digital Millenium Copyright Act gave copyright holders remarkable -new powers to regulate the content of their works, which have raised +new powers to regulate the distribution of their works, which have raised concerns that the traditional balance in the law --- between the rights granted to copyright holders and the public interest --- is being eroded. These concerns might be allayed somewhat if the @@ -32,7 +33,7 @@ broad than anything envisioned by the members of Congress as described the intent of the law in their debates and reports. -Specifically, the plaintiff's case in Universal et al. v. Corley +Specifically, the movie studios' case in Universal et al. v. Corley relies on an interpetation of the Digital Millenium Copyright Act (DMCA), specifically 17 USC 1201(a) --- a view already articulated by their attorney, Dean Marks, in hearings for the librarian of Congress @@ -50,7 +51,7 @@ {\em any} CSS formatted DVD without performing any check that the user is authorized to view it. -Further, the plaintiffs are claiming a right to impose arbitrary +Further, the studios are claiming a right to impose arbitrary conditions on the implementation of the CSS technology, via the license terms which they seek to impose on player manufacturers. These terms already include the implementation of a ``region coding'' @@ -58,7 +59,7 @@ designated by the movie studios, from being played in another --- with an obvious impact on, among other things, the ability of a purchaser to resell a work, one of the cornerstones of first sale. And nothing -in the plaintiffs' interpretation would keep them from imposing +in the studios' interpretation would keep them from imposing further conditions, which could very well have the effect of annihilating the first sale doctrine in practice. @@ -114,7 +115,8 @@ \subsection{CSS, and restrictions on its use} Licensees are required to obey numerous conditions on their use of the -CSS technology by the terms of the license. These conditions include +CSS technology by the terms of the non-public license. These conditions +are known to include implementation of a system called ``region coding'', which requires a player sold in America, for example, to refuse to play discs sold for use in Europe, or vice versa. (Among other measures, a player is @@ -123,7 +125,7 @@ without being reset at the factory). These requirements also currently include the implementation of certain copy-control technologies designed to inhibit transfer of movies onto VCR cassettes -(the so-called ``Macrovision'' machinery). However, the plaintiffs +(the so-called ``Macrovision'' machinery). However, the studios and their agents have acknowledged that these mechanisms are technically distinct from CSS {\em per se}, and bound to it only legally by the requirements of their license. They have also @@ -179,7 +181,8 @@ candid in admitting that the CSS technology does nothing at all to prevent such bootlegging. For instance, consider the following exchange, at a hearing held at Stanford University by the Copyright -Office, Dean Marks, a lawyer representing the MPAA stated flatly in +Office, Dean Marks, a lawyer representing the movie studios' trade +organization, the Motion Picture Association of America (MPAA), stated flatly in colloquy with David Carson of the Copyright office: \begin{verbatim} @@ -247,20 +250,26 @@ And yet unlike, say, compressed audio files, they are still too large to conveniently transmit over the Internet. The compression in -Mr. Ramadge's examples was to make the files small enough to fit on a +Prof. Ramadge's examples was to make the files small enough to fit on a conventional Compact Disk (CD), about 650 megabytes. Extrapolating from experiments performed by Ole Craig, a witness for the defense, a file the size of a CD would take more than three hours to transmit over a dedicated T1 line, to another computer which was very close in internet topology. (Craig's experiment involved transferring a 1.5 gigabyte file, which took over seven hours; prorating to the smaller -file at issue here is simple arithmetic). The effective bandwidth +file at issue here is simple arithmetic). (Declaration of Olegario +Craig, Universal v. Corley) + +And this T1 line is many times faster than commonly available home internet access. The effective bandwidth available through even a fast home internet connection (e.g., DSL) is -generally much less, and DSL connections are still relatively rare. -The plaintiffs note that higher bandwidth is available to researchers +generally much less. The fastest home DSL connections from Bell +Atlantic (now Verizon) are 0.64 million bits per second, compared to +the 1.5 million bits per second available on a T1; prorating, we find +nearly an eight hour download time for a CD's worth of data. +And even DSL connections are still relatively rare. +The movie studios note that higher bandwidth is available to researchers at some universities, but those are for supervised research and do not -go, say, to the dorms. (Declaration of Olegario Craig, Universal -v. Corley). Very few people, no matter how ill their will, would have +go, say, to the dorms. Very few people, no matter how ill their will, would have the patience to sit still for hours to receive a poor-quality copy of a movie over the Internet, when the price for renting the high-quality original, with all its extras, is nominal. @@ -602,9 +611,8 @@ But rather than relying on Mr. Gold's perhaps hasty and off-the-cuff remarks, let's examine a more elaborate version of this argument, from -a colloquy between David Carson, general counsel of the Library of -Congress, and Dean Marks, head intellectual property lawyer for -Time-Warner, at a hearing held regarding the DMCA at Stanford, +the colloquy between David Carson and Dean Marks +at the Stanford LOC hearing, concerning the notion of ``authority'' which is crucial to the statutory definition of ``effective access control'': @@ -709,25 +717,30 @@ the larger right to display --- authority over which, once again, the copyright holder has voluntarily surrendered at the point of sale. -However, as we have seen, the plaintiffs claim that this rule no +However, as we have seen, the movie studios claim that this rule no longer applies in the case of DVDs. They believe that they retain authority over how a work on DVD may be lawfully displayed, because that display is only lawful when it is performed, in Mr. Marks' words, on ``a licensed device'' --- licensed by them, via their agents, the -DVDCCA. And if all such devices implement some measure which +DVDCCA --- despite the failure of the studios and their agents to ever +announce this requirement to the DVD purchaser. +And if all such devices implement some measure which restricts use of a work, such as region coding which prevents viewers from viewing a disk which they purchased in Europe, then the viewers have no lawful alternative way to access the content on the DVDs which they purchased. This obviously impacts the scope of possible resale, one of the rights traditionally acquired by the purchaser under the first sale doctrine. And the scope of further restrictions that might -be imposed in the future is limited only by the plaintiffs' +be imposed in the future is limited only by the studios' imaginations in drawing up their license. -(In his colloquy with Mr. Carson of the LOC, Mr. Marks acknowledged +In his colloquy with Mr. Carson of the LOC, Mr. Marks acknowledged that ``the technological protection measure is not only dealing with -access, but also with subsequent uses of the content'' --- see the -transcript of the LOC hearing at Stanford, p. 261). +access, but also with subsequent uses of the content'' (transcript of +the LOC hearing at Stanford, p. 261). (Representatives of libraries, +universities and the public objected at those proceedings to the +imposition of persistent use controls in the guise of 1201(a) access +controls). This analysis presumes that there is no contract which would alter the terms of sale of the published work, but in the case of DVDs, that is @@ -749,12 +762,13 @@ surrendered their right to control private viewing at the sale of a DVD. Note that if surrendering display rights as per first sale is not to the taste of certain copyright owners (including, evidently, -the movie studios), the law does give them an option: they may sell +the movie studios), the law does give them an option: they may license, +rather than sell their works, as is commonly done with software, pursuant to an explicit license agreement which imposes whatever additional restrictions are to their taste; contract law, then, rather than -copyright law applies. And such a model of sales would impose scant -burden on the plaintiffs; following the practice of software +copyright law should apply. And such a model of sales would impose scant +burden on the studios; following the practice of software shrink-wrap license agreements, they can simply notify the buyer of the contract in a prominent way, and allow the purchaser to return the work if they don't agree with the terms. In fact, there is precedent @@ -763,7 +777,7 @@ contract. Incidentally, the prospect of communicating restrictions by license -agreement eliminates any appearance of conflict between 17 USC 109, +agreement could largely eliminate apparent conflict between 17 USC 109, the First Sale doctrine, and 17 USC 1201, the anticircumvention provisions of the DMCA. If a copyright owner wants to exercise their right to control access to a published work via technical measures, @@ -773,22 +787,22 @@ returning the product if they don't like the terms. That seems only fair. -But, on the plaintiffs' reading of the law, such a conflict clearly +But, on the studios' reading of the law, such a conflict clearly exists. \subsection{Encryption not required for access control; any process could be regulated} -To summarize where we have arrived: the plaintiffs have adopted a +To summarize where we have arrived: the movie studios have adopted a reading of the law which allows them a patent-like control over processes which are required to gain access to their works --- that is, once again, that the law is meant to give them control over not just the {\em act} of access, but the {\em means}. They are suing -because DeCSS threatens to allow DVD purchases to access the works -they have purchased via means which they have not authorized -(specifically, DeCSS itself). +because DeCSS threatens to allow DVD purchasers to develop +their own technologies and devices -- competing DVD players -- to access +the works they have purchased. -When asserting this control, in court and elsewhere, the plaintiffs +When asserting this control, in court and elsewhere, the studios and their representatives are always careful to qualify it, by saying that this right to authorize means of access extends only to ``access control processes'', and not other kinds of processes. For instance, @@ -811,7 +825,7 @@ ``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'' +Also, the studios 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 @@ -827,12 +841,12 @@ control (certificates, as discussed earlier) where the use of encryption, if any, is wholly incidental, and not a part at all of the access control provided. You {\em can} have access control without -encryption --- and the plaintiffs' reading would have the bizarre +encryption --- and the movie studios' reading would have the bizarre effect of denying such systems protection under the law. In short, the notion that the law is restricted to processes which are somehow cryptographic is fallacious. If the law actually grants -the plaintiffs the authority they claim, then they could exercise that +the movie studios the authority they claim, then they could exercise that authority over {\em any} process which is necessary to gain access to one of their works, such as, for instance, a video compression algorithm. Thus, they would secure the benefits of a patent on that @@ -841,7 +855,8 @@ \subsection{Access controlled is access to a market, not access to a work} -Another problem with the plaintiffs' analysis is that they are not +Another problem with the studios' analysis is that, contrary to the +letter of the statute, they are not using CSS to control access to works. As we have noted already many times, any DVD will play in any DVD player. What they are using it for is to impose conditions on the manufacture of players --- some of @@ -849,13 +864,13 @@ Macrovision copy control), and some of which simply do not (e.g., region control). -In other words, the plaintiffs are asserting that the DMCA gives them +In other words, the studios are asserting that the DMCA gives them the right to control access into the market for DVD players, by requiring anyone who builds a player to enter into a license agreement, to which they can attach arbitrary terms. Again, it is interesting to observe the colloquy of Mr. Carson of the -LOC, and Mr. Marks, representing the DMCA, on this point. Mr. Carson +LOC, and Mr. Marks, representing the MPAA, on this point. Mr. Carson began by noting that CSS, as described by Mr. Marks, had nothing to do with access control as he (correctly) understood it: @@ -931,7 +946,7 @@ DMCA. And later, when Mr. Carson asked what defined an ``authorized user'', in the view of Time Warner, Mr. Marks replied that that was {\em anyone} who had legal possession of a DVD and a licensed player -(the only legal kind of player, in the plaintiffs' view): +(the only legal kind of player, in the MPAA's view): \begin{verbatim} 21 [MR. CARSON:] In other words, there's no reason to @@ -960,7 +975,7 @@ 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. +movie studios' restrictions, whatever they may be. Before the passage of the DMCA, this would have been somewhat questionable; indeed, it has at least the appearance of an illegal @@ -1167,7 +1182,8 @@ \subsection{Inconsistent with other provisions of the DMCA} -We might also note that the injunction sought by the plaintiffs would +We might also note that the injunction sought by the plaintiffs in +Universal et al. v. Corley would harm some fields of activity specifically protected by the DMCA. Cryptographic research, for example, is the study of security systems @@ -1180,7 +1196,7 @@ it is exactly that communication, in the form of computer source code, which the plaintiffs are seeking to enjoin. -The plaintiffs' interpreation is also somewhat difficult to reconcile +The movie studios' interpretation is also somewhat difficult to reconcile with the provisions for reverse engineering in the Act. The whole point of reverse engineering, as it is ordinarily practiced, is to allow an engineer to discover features of a system or product which @@ -1192,12 +1208,15 @@ \subsection{Inconsistent with Constitutional principles} -Finally, let us try to relate the new right the plaintiffs are -claiming to the Constitution. What the plaintiffs are claiming, once -again, is a patent-like power to regulate the manufacture of players -which perform their ``access control'' process. Constitutional -enabling language for both patents and copyrights, which (in Article -I, Sec. 8) grants Congress the power \ldots +Finally, the movie studios' claimed rights of access control break the +constitutional balance between the copyright holder's limited monopoly +and public access to information. What they are claiming, +once again, is a patent-like power to regulate the manufacture of +players which perform their ``access control'' process, allowing them +to retain control over the use of content they are ostensibly +publishing. Constitutional enabling language for both patents and +copyrights (in Article I, Sec. 8) grants Congress the power +\ldots \begin{quotation} To promote the progress of science and useful arts, by securing for @@ -1214,22 +1233,26 @@ The protection granted must extend ``for a limited time''. \item The form of protection must be appropriate --- authors are granted -protections for their works, but not inventions, and inventors -protection for inventions, but not copyrightable works. +protections for expressive content of their works, but not functional +elements, and inventors protection for functional elements of their +inventions, but not expressive content. \item -The form of protection granted must in some way promote ``the progress -of science and the useful arts''. +The form of protection granted must in some way promote ``the progress +of science and the useful arts''. Traditionally, authors and +inventors have received exclusive rights in exchange for public +disclosure, through fair use rights in copyrighted works or the +enabling disclosure of a patent application \end{itemize} The access-control right fails the first two of these tests flat --- there is no time limit; more strangely, in this case, we have authors -(copyright holders) claiming an exclusive and perpetual right to a -``process or treatment'' which is applied to their work --- clearly an -invention. +(copyright holders) claiming an exclusive and perpetual right to the +functional elements of a ``process or treatment'' which is applied to +their work --- clearly an invention. \subsection{Abuse of paracopyright} -Lastly, even if we accept that plaintiffs have been granted a +Lastly, even if we accept that studios have been granted a patent-like right to control the implementation and use of CSS, in perpetuity, the courts have long held that there are limits to the scope of such grants, based on a long history of jurisprudence which @@ -1247,14 +1270,14 @@ ``paracopyright'' rights were granted by the DMCA. And in already tying CSS to mechanisms like region coding --- a mechanism whose explicit, designed purpose is restraint of trade between the regions ---- the plaintiffs are clearly exceeding the bounds. +--- the studios are clearly exceeding the bounds. -The plaintiffs' witnesses admit and relish the tying between +The studios' representatives admit and relish the tying between movies and players, as the numerous quotes about ``authorized'' and ``licensed'' players clearly show; the whole purpose of the CSS licensing regime is to impose restrictions on the players. As Mr. Marks testified at the LOC hearing: -\begin{quotation} +\begin{verbatim} 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 @@ -1269,7 +1292,7 @@ 17 obligations, for example, is that the content is not 18 allowed to flow out in the clear on a digital 19 output. -\end{quotation} +\end{verbatim} (LOC hearing transcript, p. 242). The collective market power of the movie studios in the DVD market is obvious and undisputed. Through @@ -1426,36 +1449,36 @@ property in suit, and hence beyond the reach of intellectual property laws as the Supreme Court has interpreted them. -\subsection{These problems inhere only to the plaintiffs' reading} +\subsection{These problems inhere only to the studios' reading} It is noteworthy that the problems discussed above largely go away when the statute is read, as seems clear it was intended, to protect only measures which test whether a user is authorized to view a -particular work, and only to the effect that plaintiffs' can sue if +particular work, and only to the effect that copyright holders can sue if such a test is subverted, not if it is performed correctly by a device which they have not licensed. In this reading, the law becomes reflective of the expressed Congressional intent, not completely at variance with it. And the law is no longer seen as granting exclusive -rights over any process to copyright holders. (No such grant is +rights over any process to copyright holders. No such grant is necessary to protect legitimate access control; Congress can ban circumvention tools without granting exclusive rights to manufacturers of access controls just as they can ban burglary tools without -granting a new form of intellectual property right to locksmiths). +granting a new form of intellectual property right to locksmiths. \section{Consequences of adopting plaintiffs' reading} -We have argued so far that the plaintiffs' reading of the DMCA is at -odds with the text of the statute itself, with legislative intent, and -with the Constitution. However, if they were to prevail, it would -establish a precedent which would, in the long run, be enormously -harmful to the public interest. To see this, let us examine what the -rights plaintiffs are claiming in this case, and consider what similar -claims they might make in the future. +We have argued so far that the studios' reading of the DMCA is at odds +with the text of the statute itself, with legislative intent, and with +the Constitution. However, if they were to prevail in their lawsuit, +it would establish a precedent which would, in the long run, be +enormously harmful to the public interest. To see this, let us +examine what rights the studios are claiming in this case, and +consider what similar claims they might make in the future. \subsection{Imposition of arbitrary use controls on work, via license restrictions} -To begin with, the plaintiffs are claiming a monopoly right to vet and +To begin with, the movie studios are claiming a monopoly right to vet and approve implementations of the CSS process, a process which is necessary to render the video from any DVD (deriving this supposed right from the notion that CSS is an ``access control'' process, even @@ -1468,7 +1491,7 @@ (One could build a DVD player which did not do CSS, but it would not render the vast majority of current DVD titles, and would be very little use in the usual role of such a player in home entertainment). -So, if plaintiffs succeed in their case, it will not be possible to +So, if the studios succeed in their case, it will not be possible to build a useful DVD player without a license. And, while the fee for these licenses is (so far!) nominal, and they @@ -1478,25 +1501,25 @@ obnoxious. One such condition, for instance, is the implementation of the -``region coding'' mechanism, by means of which the plaintiffs mark +``region coding'' mechanism, by means of which the studios mark certain disks as intended for particular markets, so that a DVD sold in the United States, for instance, is not supposed to be playable in Brazil. Many people (not excepting Americans, who are not supposed to be able to view disks sold in Europe!) might find this to be an -obnoxious restrigion. Indeed, in Europe, there is already a +obnoxious restriction. Indeed, in Europe, there is already a substantial market for DVD players without region control, and for kits to disable the region control mechanism in DVD players. This region coding mechanism has nothing to do with either access control or copy control, the two nominal rights provided by copyright -holders under the DMCA. Yet, the plaintiffs are using their supposed +holders under the DMCA. Yet, the studios are using their supposed right to license the CSS mechanism as a club to force player manufacturers to adopt it. -And there is nothing in the plaintiffs' reading of the law to prevent +And there is nothing in the studios' reading of the law to prevent them from imposing even more restrictions on CSS licensees in the future, which, if translated into mechanisms such as region coding, would be translated directly into controls of the use of their works -by the consumer. In effect, the plaintiffs would have bootstrapped +by the consumer. In effect, the studios would have bootstrapped the access control power, which they were given by Congress into a power to control the {\em use} of their works, which they were denied. And they would have reestablished the end-to-end control of @@ -1508,7 +1531,7 @@ \subsection{Economic control of the player market} -Likewise, while the plaintiffs are not charging excessive fees or +Likewise, while the studios are not charging excessive fees or discriminating against potential licensees now, there is nothing in their reading of the law to prevent them from doing so in the future, thereby allowing them to pick and choose among potential licensees. @@ -1516,7 +1539,7 @@ to control the design of products which play their works --- another power which Congress specifically denied them. -In short, if the plaintiffs are allowed to impose arbitrary terms in +In short, if the movie studios are allowed to impose arbitrary terms in the CSS license, and to require such a license as a condition of legal manufacture of players for their work, they would have acquired a power of enormous scope, of immense value to them, but hugely inimical @@ -1534,10 +1557,8 @@ specifically designed to grant unauthorized access, and would not cover any device with a legitimate purpose. -\enlargethispage{0.25 in} - The interpretation of the law adopted by the MPAA stands this balance -on its head. The plaintiffs are asserting an absolute right to +on its head. The movie studios are asserting an absolute right to control the manufacture of {\em any} machinery which is capable of viewing their CSS-protected works, specifically including the LiViD project, whose sole purpose is in fact producing a player functionally From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 4 11:27:02 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA24472 for dvd-discuss-outgoing; Fri, 4 Aug 2000 11:27:02 -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 LAA24467 for ; Fri, 4 Aug 2000 11:26:58 -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 KAA32672 for ; Fri, 4 Aug 2000 10:26:25 -0500 Message-ID: <398AE214.98740E93@mninter.net> Date: Fri, 04 Aug 2000 10:32:36 -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: <5A8391CA2D9ED311AFAA080009D982B10B1DA7@mail2.onetouch.com> <398A38EE.C6177F55@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 Permit me a reply to myself: Chris Moseng wrote: > If the copyright holder conveys authority external to the access > control measure, we reach the mind-bending conclusion that every CSS > implementation succumbs to 1201(a)(2) This is fraud, copyright > misuse, blah, blah, blah. Not to mention just plain ludicrous. And the point I keep forgetting to add: if the copyright holder has the right to convey authority external to the access control measure, any and every "unauthorized" process succumbs to 1201(a)(2). I did not authorize you to open that book. You were not authorized to ROT-13 that email. Sure you just typed in http://www.georgebush.com and learned of our campaign strategy, but we didn't authorize that http request. Kindly cease and disist your use of that browser. It's a flawed reading. In this reading, the access control measure doesn't. If it were an accurate reading, why bother with the pretense of encryption, and fight instead against unauthorized MPEG-2 decoding? Because even the plaintiffs know that circumvention means tricking or breaking CSS, not implementing it against their wishes. I think that agreeing with the plaintiffs that DeCSS circumvents in the hopes of having the law overturned sounds risky. If the plaintiffs reading is found askew, then all of our arguments for ruling 1201 unconstitutional would be worthless. We don't know when authority is conveyed, we can't use it as the keystone in a constitutionality defense. Rather than hanging our hats on the plaintiff's sketchy idea of 1201, shouldn't we assert one of our own? Maybe I'm a few steps behind Richard. I'm not willing to commit, yet, to an attack based on the plaintiffs position until I've read it next week. I'm not comfortable guessing at it. Thank goodness we're not the actual defense team. No legal strategist, chris -- moseng@mninter.net I use PGP 6.5.3 -- http://www.underwhelm.org/pgp From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 4 11:44:57 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA25104 for dvd-discuss-outgoing; Fri, 4 Aug 2000 11:44:57 -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 LAA25101 for ; Fri, 4 Aug 2000 11:44:55 -0400 From: Consilgere@cs.com Received: from Consilgere@cs.com by csimo01.mx.aol.com (mail_out_v27.12.) id x.f2.1804dd7 (4004) for ; Fri, 4 Aug 2000 11:44:09 -0400 (EDT) Message-ID: Date: Fri, 4 Aug 2000 11:44:09 EDT Subject: Re: [dvd-discuss] first amendment defense 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 The recipe should be patented. But there is an inherent difference between source code and recipes, like ive said before. You can't make an egg salad out of a 3x5 card, or a page in Jane Brody's Cookbook. You can make a program our of source code. From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 4 11:47:51 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA25186 for dvd-discuss-outgoing; Fri, 4 Aug 2000 11:47:51 -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 LAA25183 for ; Fri, 4 Aug 2000 11:47:50 -0400 From: Consilgere@cs.com Received: from Consilgere@cs.com by csimo01.mx.aol.com (mail_out_v27.12.) id x.2b.9157e61 (4004) for ; Fri, 4 Aug 2000 11:47:04 -0400 (EDT) Message-ID: <2b.9157e61.26bc3f77@cs.com> Date: Fri, 4 Aug 2000 11:47:03 EDT Subject: Re: [dvd-discuss] first amendment defense 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 The ISP is told they have to connect it, only if the ISP cannot supply the information witohut it. If the ISP can supply the information Carnivore collects, and many major ISPs can, then Carnivore is not used. Carnivore only gets used where it's needed, with a warrant. From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 4 11:51:30 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA25247 for dvd-discuss-outgoing; Fri, 4 Aug 2000 11:51:30 -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 LAA25244 for ; Fri, 4 Aug 2000 11:51:28 -0400 From: Consilgere@cs.com Received: from Consilgere@cs.com by csimo02.mx.aol.com (mail_out_v27.12.) id x.e0.80b7ddb (4004) for ; Fri, 4 Aug 2000 11:50:40 -0400 (EDT) Message-ID: Date: Fri, 4 Aug 2000 11:50:39 EDT Subject: Re: [dvd-discuss] first amendment defense 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 The Third Reich was legitimate to german citizens. They wanted that government. It came into power through a democratic election. Now to say it was legitimate in the land it overtook anywhere else, is a different story. From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 4 12:00:02 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA25342 for dvd-discuss-outgoing; Fri, 4 Aug 2000 12:00:02 -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 LAA25338 for ; Fri, 4 Aug 2000 11:59:59 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id ; Fri, 4 Aug 2000 08:59:36 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1DAD@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] the definition of 'Circumvention' Date: Fri, 4 Aug 2000 08:59:35 -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: Sampo A Syreeni [mailto:ssyreeni@cc.helsinki.fi] > Sent: Friday, August 04, 2000 1:20 AM > To: 'dvd-discuss@eon.law.harvard.edu' > Subject: RE: [dvd-discuss] the definition of 'Circumvention' > > > On Thu, 3 Aug 2000, Richard Hartman wrote: > > >Likewise, DeCSS gives you access to the DVD "vault", > >but unauthorized access _in_their_authorisation_model_. > > > >The fact that it is an "implementation" does not > >convey authority to use that implementation. > > I think the point that lead us to discuss implementations vs. > exploits was > that from the earlier viewpoint, it is much easier to argue that DeCSS > qualifies for the RE exception. In this case it doesn't much > matter that the > access is unauthorized - I'm sure there are conditions in > which unauthorized > access to a missile vault will be unprocecutable nevertheless. > I am not sure, but I think the RE exception let's you create DeCSS ... but doesn't save you from the "trafficking" section if you attempt to distribute it. That would mean that everybody that had the capability to create their own decoder could do so, but they couldn't give it to anybody else. Somebody correct me if I am wrong about 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 Fri Aug 4 12:07:31 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA25628 for dvd-discuss-outgoing; Fri, 4 Aug 2000 12:07:31 -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 MAA25625 for ; Fri, 4 Aug 2000 12:07:30 -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 LAA23780 for ; Fri, 4 Aug 2000 11:07:19 -0500 (CDT) Message-ID: <398AEA16.59EF8423@uic.edu> Date: Fri, 04 Aug 2000 11:06:46 -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] revised first sale discussion Content-Type: text/plain; charset=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: > >In the case of Circuit City Divx, no doubt the technology was >strong enough so that it was not cracked. Or, alternatively, anyone who was technologically savvy enough to take a whack at breaking the encryption was boycotting the technology anyway. Divx was pretty heavily reviled. From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 4 12:08:18 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA25712 for dvd-discuss-outgoing; Fri, 4 Aug 2000 12:08:18 -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 MAA25680 for ; Fri, 4 Aug 2000 12:08:13 -0400 Received: from mit.edu (h0050da62b39d.ne.mediaone.net [24.147.219.153]) by chmls06.mediaone.net (8.8.7/8.8.7) with ESMTP id MAA06247; Fri, 4 Aug 2000 12:07:53 -0400 (EDT) Message-ID: <398AEAAB.172EBEDD@mit.edu> Date: Fri, 04 Aug 2000 12:09:15 -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] first amendment 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 Consilgere@cs.com wrote: > > The recipe should be patented. But there is an inherent difference between > source code and recipes, like ive said before. You can't make an egg salad > out of a 3x5 card, or a page in Jane Brody's Cookbook. You can make a > program our of source code. There are only two reasons this is true. First, most recipes are not sufficently precise for others to be able to duplicate the results without experimentation. Second, no one (that I know of) has built a computer-controlled kitchen, yet. Neither of these differences is fundamental. Source code an be imprecise (there are usually many different ways a particular program can be compiled, some of which have observable consequences), and people often write source code for programming languages that don't exist yet as part of language development. The difference between a recipe and source code just like the difference between the statement "you can find that on the FreeBSD web site" and a specific URL: a difference of degree, not kind. - Ravi Nanavati From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 4 12:11:05 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA25918 for dvd-discuss-outgoing; Fri, 4 Aug 2000 12:11:05 -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 MAA25915 for ; Fri, 4 Aug 2000 12:11:04 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id ; Fri, 4 Aug 2000 09:11:15 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1DAE@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] DeCSS: No title keys, no descrambling, no (a)(2 ) Date: Fri, 4 Aug 2000 09:11:14 -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: Bryan Taylor [mailto:bryan_w_taylor@yahoo.com] > Sent: Thursday, August 03, 2000 6:22 PM > To: dvd-discuss@eon.law.harvard.edu > Subject: [dvd-discuss] DeCSS: No title keys, no descrambling, > no (a)(2) > > > The title key is the authority of the copyright holder to access the > contents protected by title key encryption. I do not believe that this has been established. If it has, it would be very good. As far as I can tell, though, the title is necessary to gain access -- but it does not in and of itself signify any sort of grant of authority. If I am mistaken in this, please point out where the equivilance between title key and authorization was established. Sure, dad made you a copy of his car keys ... but he told you that you could only drive the car every other thursday night. Merely possessing the key does not imply authorization. >This key is purchased when > the DVD is purchased. Distributing devices that contain title keys > would therefore be illegal under (a)(2), but ones that don't are not. > DeCSS cannot decrypt .vob files without application of the title key > with the authority of the copyight holder, which it verifies by > authenticating the DVD drive and removing the title key from the media > that it was purchased on. > > Any device which does not contain title keys is not able to > descrambling the movie on a DVD. While it might become > capable of doing > this by application of the title key information, until this happens > such a device cannot be considered actionable under (a)(2). DeCSS is > not distributed with title keys, and therefore immune to causes of > action under (a)(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 Fri Aug 4 12:24:33 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA26136 for dvd-discuss-outgoing; Fri, 4 Aug 2000 12:24:33 -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 MAA26133 for ; Fri, 4 Aug 2000 12:24:32 -0400 From: Consilgere@cs.com Received: from Consilgere@cs.com by csimo02.mx.aol.com (mail_out_v27.12.) id x.c8.8838862 (4004) for ; Fri, 4 Aug 2000 12:23:50 -0400 (EDT) Message-ID: Date: Fri, 4 Aug 2000 12:23:49 EDT Subject: Re: [dvd-discuss] first amendment defense 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 Ravi, you missed a reason. The primary and most important reason this is true is that a recipe tells you how to put other things together. Other things independent of the physical recipe. Source code doesn't tell you how to put anything together. The source code is what you were supposed to put together in the first place. You cannot separate the source code from the executable. They're part and parcel. From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 4 12:26:04 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA26230 for dvd-discuss-outgoing; Fri, 4 Aug 2000 12:26:04 -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 MAA26224 for ; Fri, 4 Aug 2000 12:26:01 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id ; Fri, 4 Aug 2000 09:26:09 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1DAF@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] the definition of 'Circumvention' Date: Fri, 4 Aug 2000 09:26:08 -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: Eric Eldred [mailto:eldred@eldritchpress.org] > Sent: Thursday, August 03, 2000 9:22 PM > To: dvd-discuss@eon.law.harvard.edu > Subject: Re: [dvd-discuss] the definition of 'Circumvention' > > > On Thu, Aug 03, 2000 at 10:30:54PM -0500, Chris Moseng wrote: > >... > > Like I say, though, it all depends on where the plaintiffs > believe they > > give us authorization to access the copies on our DVDs. One > makes sense, > > the rest will cause them trouble. Authorization remains the missing > > piece of the puzzle that can exonerate 1201 or will damn > it. I'm just > > trying to ensure that it is clear that: > > > > **DeCSS is no more or less a 1201(a)(2)(A) or (a)(2)(B) > circumvention > > device than every other CSS implementation.** > > > > I see this as a key to defending DeCSS from 1201(a)(2). > > Well, I don't think Richard is saying that DeCSS can't > be defended, he does say that 1201 taken as a whole is > contradictory and neither your explanation nor plantiffs' > can rescue it. (Please correct me if I misread the > lengthy comments in this debate.) No, you are bang on. I'd even go a step further and say that even if the explanation being suggested could get us past this one case, taking that way out would still leave us with a dangerously flawed law to contend with in the future. > > What I worry about from reading Richard's comments, though, > is whether or not Judge Kaplan will somehow leap on the > idea that the *player* keys were stolen, I don't think they are (or can be) "stolen". I am fairly certain that it has been determined that they can not be protected by copyright or patent. If they are "trade secret" then any discovery that did not involve illegal acts (such as breaking in to the locked file cabinet in their office) is fair game, as would RE. >and it is the > authorization of those, via the DVD-CCA authority and thus > indirectly from the copyright holder's authority, that > allows access under 1201. Actually what I am saying -- and I think what the Ps are saying, although they want to avoid coming straight out on this -- is that there is no technical component of the system that conveys authorization. Authorization is conveyed contractually. You can have devices that function identically but one could be authorized and the other not if Jack V. came to your house and said "you can't use that". Now I am not saying that this is a good authorization model ... especially since vital links in the chain are in hidden contracts ... but I do think that it is a model that the court has accepted. Possibly because the Ps were never forced to give the step-by-step diagram of the process, but that is neither here nor there. Parts of this authorization model correspond well with expected authorization models in other venues, and the plaintiffs have done a good job of seeing that only the "reasonable" parts of their authorization model have been brought up. >Because the player keys don't > come from the disc, only the title keys do, right? And > Kaplan might imagine that DeCSS (or MoRE) stole the player > keys. They did not steal the Xing key, it was not protected. Also the player keys can be reverse engineered, or even discovered with a brute force attack since they are small numbers. > Even then, DeCSS can be defended because possession of the > disc with the title keys ought to be enough under first > sale and fair use. Yes. It ought. But it is not because of the way this law is written to require the authorization "of the copyright holder" implicitly excluding all other valid sources of authorization. >And if Kaplan takes this interpretation > we have already seen it raises a host of other problems > that can be asserted on appeal. > I don't want to tear down this structure we have built > together in this group. But I still feel that we should not > be trying to find some reasonable interpretation of 1201 > even if DeCSS is legal under it. The act is too flawed, > and a "shotgun" defense is hazardous unless we can be sure > to cover every possibility adequately. If plaintiffs were > required to supply the explanation it would be different. D'accord. -- -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 Aug 4 12:28:14 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA26355 for dvd-discuss-outgoing; Fri, 4 Aug 2000 12:28:14 -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 MAA26352 for ; Fri, 4 Aug 2000 12:28:11 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id ; Fri, 4 Aug 2000 09:28:21 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1DB0@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] My personal submission to the Copyright Office Date: Fri, 4 Aug 2000 09:28:21 -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 I like it. I was just considering writing up a short description of the internal contradiction within 1201 that has been the subject of recent msgs. When is the copyright office comment submission deadline? And where is the URL again? -- -Richard M. Hartman hartman@onetouch.com 186,000 mi./sec ... not just a good idea, it's the LAW! > -----Original Message----- > From: Bryan Taylor [mailto:bryan_w_taylor@yahoo.com] > Sent: Thursday, August 03, 2000 6:37 PM > To: dvd-discuss@eon.law.harvard.edu > Subject: [dvd-discuss] My personal submission to the Copyright Office > > > I had a burst of creativity this morning and decided to supplement my > contribution to the submission spearheaded by Robert with a second, > shorter comment to the Copyright Office. Since this is a 12th hour > creation, I'll submit it purely under my own name. > > Here's the link to what I wrote: > http://bioinformatics.ucsf.edu/bwtaylor/dvd/LOC_109_RFC.txt > > Comments are welcome, but please don't let this distract from the more > comprehensive submission that we've been working on. > > __________________________________________________ > Do You Yahoo!? > Kick off your party with Yahoo! Invites. > http://invites.yahoo.com/ > From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 4 12:33:52 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA26751 for dvd-discuss-outgoing; Fri, 4 Aug 2000 12:33:52 -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 MAA26748 for ; Fri, 4 Aug 2000 12:33:50 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id ; Fri, 4 Aug 2000 09:34:00 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1DB1@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] revised first sale discussion Date: Fri, 4 Aug 2000 09:33:59 -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: Eric Eldred [mailto:eldred@eldritchpress.org] > Sent: Thursday, August 03, 2000 8:51 PM > To: dvd-discuss@eon.law.harvard.edu > Subject: Re: [dvd-discuss] revised first sale discussion > > > On Thu, Aug 03, 2000 at 05:07:28PM -0400, Leland Ray wrote: > > > > > Eric Eldred wrote: > > > > > >In the case of Circuit City Divx, no doubt the technology was > > >strong enough so that it was not cracked. > > > > I think had Divx reached the same widespread use that DVDs > > enjoy, it might very well have been cracked. The point is, > > until technology reaches a critical mass its just not > > interesting enough to look at. > > > > > > This is a whole point that was not really explored at trial > > (what I would have liked to see in a closing argument), > > the reason movies started appearing on the internet, and the > > reason why DeCSS, and all the various DVD utilities > > are developed is because the technology is now widespread > > enough that there is a market for these additional > > products. > > Good point. Whether or not it might have been cracked > is more likely a time/cost problem than a technical one. > One might infer that MPAA is trying to assert control > here right at the start "to establish a lesson for > potential circumvention in the future." > But all this is beside the point. Even if Divx had been technically cracked, they had an economic model that supported the 1201 protections. There was no "first sale" with implied viewing rights. There were explicit, limited, viewing rights up front and explicit methods in place for extending those rights. If Divx protection had a technical crack, it would be prosecutable. DVD, otoh, has no such up front restrictions when you give the money to the cashier. Therefore you have purchased the right to view the material without restriction (well, other than the "public display" and redistribution restrictions normally associated with copyright materials...). This makes the DeCSS a completely legitimate tool by which to excercise those viewing rights. But the court has seen none of this since exploration of the authorization model was adequately suppressed by the plaintiffs. -- -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 Aug 4 12:35:15 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA26792 for dvd-discuss-outgoing; Fri, 4 Aug 2000 12:35:15 -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 MAA26789 for ; Fri, 4 Aug 2000 12:35:14 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id ; Fri, 4 Aug 2000 09:35:25 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1DB2@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] first amendment defense Date: Fri, 4 Aug 2000 09:35:24 -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: Sampo A Syreeni [mailto:ssyreeni@cc.helsinki.fi] > Sent: Friday, August 04, 2000 1:02 AM > To: 'dvd-discuss@eon.law.harvard.edu' > Subject: RE: [dvd-discuss] first amendment defense > > > On Thu, 3 Aug 2000, Richard Hartman wrote: > > >The power wielded by the state may be illegitimate despite > >the people continuing to allow it. > > The Third Reich immediately springs to mind. But then the question is, > illegitimate under what law? A divine one? I sure hope not. > Well ... that was the authority under which the Declaration of Independance was written... -- -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 Aug 4 12:35:40 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA26811 for dvd-discuss-outgoing; Fri, 4 Aug 2000 12:35:40 -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 MAA26808 for ; Fri, 4 Aug 2000 12:35:38 -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 LAA09131 for ; Fri, 4 Aug 2000 11:35:06 -0500 Message-ID: <398AF21A.353C8223@mninter.net> Date: Fri, 04 Aug 2000 11:40:58 -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] DeCSS: No title keys, no descrambling, no (a)(2) References: <5A8391CA2D9ED311AFAA080009D982B10B1DAE@mail2.onetouch.com> Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Richard Hartman wrote: > I do not believe that this has been established. If it has, > it would be very good. As far as I can tell, though, the title > is necessary to gain access -- but it does not in and of itself > signify any sort of grant of authority. If I am mistaken in this, > please point out where the equivilance between title key and > authorization was established. You're right that it hasn't been established, but it makes sense under 1201, while anything else comes out as nonsense. WE can establish it. > Sure, dad made you a copy of his car keys ... but he told you > that you could only drive the car every other thursday night. Dad's authority over the car isn't granted by copyright, but by property law. He is capable of invoking and revoking his authority at will in the absense of a contract. If dad wrote a book, though, and wrote on the title page I could only read it on thursday nights, the judge would tell him to shove it. My DVD packages don't even mention any restrictions that I do or might have pertaining to access authorization. > Merely possessing the key does not imply authorization. It's what 1201 intended. Either it implies authorization or 1201 isn't worth the reams of paper it was printed on. I tend to side with the former, and I suspect that judges would want to, too. I still think that this position concedes too much and engages in the same misunderstanding of the law that the plaintiffs are victim to in the name of declaring it unconstitutional. I hesitate to believe that a law can be overturned based on a misreading, if there is a reading in harmony with reality that doesn't conflict with caselaw, constitution, etc. still no legal strategist, chris -- moseng@mninter.net I use PGP 6.5.3 -- http://www.underwhelm.org/pgp From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 4 12:39:07 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA26976 for dvd-discuss-outgoing; Fri, 4 Aug 2000 12:39:07 -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 MAA26970 for ; Fri, 4 Aug 2000 12:39:02 -0400 Message-ID: <20000804163817.10205.qmail@web512.mail.yahoo.com> Received: from [131.44.121.4] by web512.mail.yahoo.com; Fri, 04 Aug 2000 09:38:17 PDT Date: Fri, 4 Aug 2000 09:38:17 -0700 (PDT) From: Bryan Taylor Subject: RE: [dvd-discuss] the definition of 'Circumvention' To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-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: > I am not sure, but I think the RE exception let's you > create DeCSS ... but doesn't save you from the "trafficking" > section if you attempt to distribute it. That would mean > that everybody that had the capability to create their > own decoder could do so, but they couldn't give it to > anybody else. > > Somebody correct me if I am wrong about this. You read (f)(2) correctly, but you didn't read (f)(3): 1201(f)(3) "The information acquired through the acts permitted under paragraph (1), and the means permitted under paragraph (2), may be made available to others if the person referred to in paragraph (1) or (2), as the case may be, provides such information or means solely for the purpose of enabling interoperability of an independently created computer program with other programs, and to the extent that doing so does not constitute infringement under this title or violate applicable law other than this section. " __________________________________________________ Do You Yahoo!? Kick off your party with Yahoo! Invites. http://invites.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 4 12:40:57 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA27074 for dvd-discuss-outgoing; Fri, 4 Aug 2000 12:40:57 -0400 Received: from tbird.iworld.com ([63.236.72.237]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id MAA27070 for ; Fri, 4 Aug 2000 12:40:55 -0400 Received: (from nobody@localhost) by tbird.iworld.com (8.10.2/8.10.2) id e74Gej228312; Fri, 4 Aug 2000 12:40:45 -0400 Date: Fri, 4 Aug 2000 12:40:45 -0400 Message-Id: <200008041640.e74Gej228312@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] first amendment defense Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Consilgere@cs.com wrote: >The recipe should be patented. But there is an inherent difference between >source code and recipes, like ive said before. You can't make an egg salad >out of a 3x5 card, or a page in Jane Brody's Cookbook. You can make a >program our of source code. You must read to make an egg salad out of a 3x5 card. You are the compiler/interpreter of that egg salad. That egg salad doesn't run itself. You must compile or interpret (that is effect a function based on the source code) to do the programming work. In order for the source code to function there must be an intermediate step. Interpretting code by the listening shell or through an interpreter is still a intermediate function. Loading machine code (not ASM code or hex code but machine code) is not an intermediate step since it places the code in memory to be accessed by the processor directly. Source cannot function by itself no more than a recipe can. 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 Fri Aug 4 12:43:04 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA27186 for dvd-discuss-outgoing; Fri, 4 Aug 2000 12:43:04 -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 MAA27183 for ; Fri, 4 Aug 2000 12:43:02 -0400 Message-ID: <20000804164221.17561.qmail@web510.mail.yahoo.com> Received: from [131.44.121.4] by web510.mail.yahoo.com; Fri, 04 Aug 2000 09:42:21 PDT Date: Fri, 4 Aug 2000 09:42:21 -0700 (PDT) From: Bryan Taylor Subject: RE: [dvd-discuss] My personal submission to the Copyright Office To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-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: > I like it. I was just considering writing up a short > description of the internal contradiction within 1201 > that has been the subject of recent msgs. When is > the copyright office comment submission deadline? And > where is the URL again? The deadline is TODAY, 8/4/00!! Reply comments are due 9/5/00. http://www.eff.org/pub/Intellectual_property/DMCA/20000605_dmca_comments_request.html I have submitted mine. Here's the final: http://bioinformatics.ucsf.edu/bwtaylor/dvd/LOC109.pdf Robert, when you have your final up, please post it. __________________________________________________ Do You Yahoo!? Kick off your party with Yahoo! Invites. http://invites.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 4 12:45:51 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA27232 for dvd-discuss-outgoing; Fri, 4 Aug 2000 12:45:51 -0400 Received: from tbird.iworld.com ([63.236.72.237]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id MAA27229 for ; Fri, 4 Aug 2000 12:45:50 -0400 Received: (from nobody@localhost) by tbird.iworld.com (8.10.2/8.10.2) id e74Gjbq28823; Fri, 4 Aug 2000 12:45:37 -0400 Date: Fri, 4 Aug 2000 12:45:37 -0400 Message-Id: <200008041645.e74Gjbq28823@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] first amendment defense Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Consilgere@cs.com wrote: >The ISP is told they have to connect it, only if the ISP cannot supply the >information witohut it. If the ISP can supply the information Carnivore >collects, and many major ISPs can, then Carnivore is not used. Carnivore >only gets used where it's needed, with a warrant. Oh this is fun. If you come undressed we won't need a warrant to frisk you. What right do they have to ask for the information without a warrant? What right do they have to tell me to come undressed? You're certifiable. 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 Fri Aug 4 12:46:07 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA27246 for dvd-discuss-outgoing; Fri, 4 Aug 2000 12:46:07 -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 MAA27243 for ; Fri, 4 Aug 2000 12:46:06 -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 MAA13817 for ; Fri, 4 Aug 2000 12:45:55 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id MAA00076; Fri, 4 Aug 2000 12:45:53 -0400 (EDT) Date: Fri, 4 Aug 2000 12:45:53 -0400 (EDT) Message-Id: <200008041645.MAA00076@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: RE: [dvd-discuss] the definition of 'Circumvention' In-Reply-To: <5A8391CA2D9ED311AFAA080009D982B10B1DA7@mail2.onetouch.com> References: <5A8391CA2D9ED311AFAA080009D982B10B1DA7@mail2.onetouch.com> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Richard Hartman writes: > Granted. But it is an implementation created "without the > authority of the copyright owner", and therein lies the issue. > Going into the technical details of the implementation such > as title keys is irrelevant beyond this point. However, remember that the actual wording of the law is ambiguous. An "effective access control" is defined as a technical measure which "requires the application of information, or a process or treatment, with the authority of the copyright owner, to provide access to [a] work." If you interpret the law to say that the copyright owners are empowered to grant or deny authority for particular processes or treatments, then you get all the problems you're discussing. If, on the other hand, this wording means that the *technical measure* must check that the *viewer* has the authority of the copyright owner to view the *particular work*, then I believe most of those problems go away. The law can be read either way. (It's almost as if it was *meant* to be read both ways, so somebody could tell Congress it meant one thing, and the courts another; they couldn't have gotten it through Congress if it granted patent-like rights on its face). On this second reading of the law, providing an alternative, functionally equivalent implementation of a technical measure (e.g., DeCSS for CSS) can never be circumvention, since, by hypothesis, the functionally equivalent implementation performs the exact same tests to the same effect. Circumvention would consist only of devices which defeat or bypass that test --- which DeCSS obviously doesn't do. rst From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 4 12:47:27 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA27334 for dvd-discuss-outgoing; Fri, 4 Aug 2000 12:47:27 -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 MAA27331 for ; Fri, 4 Aug 2000 12:47:26 -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 MAA14029 for ; Fri, 4 Aug 2000 12:47:15 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id MAA00085; Fri, 4 Aug 2000 12:47:15 -0400 (EDT) Date: Fri, 4 Aug 2000 12:47:15 -0400 (EDT) Message-Id: <200008041647.MAA00085@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: RE: [dvd-discuss] My personal submission to the Copyright Office In-Reply-To: <20000804164221.17561.qmail@web510.mail.yahoo.com> References: <20000804164221.17561.qmail@web510.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 deadline is TODAY, 8/4/00!! Reply comments are due 9/5/00. > > http://www.eff.org/pub/Intellectual_property/DMCA/20000605_dmca_comments_request.html > > I have submitted mine. Here's the final: > http://bioinformatics.ucsf.edu/bwtaylor/dvd/LOC109.pdf > > Robert, when you have your final up, please post it. Already done... rst From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 4 12:47:59 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA27351 for dvd-discuss-outgoing; Fri, 4 Aug 2000 12:47:59 -0400 Received: from tbird.iworld.com ([63.236.72.237]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id MAA27348 for ; Fri, 4 Aug 2000 12:47:57 -0400 Received: (from nobody@localhost) by tbird.iworld.com (8.10.2/8.10.2) id e74Gllt28964; Fri, 4 Aug 2000 12:47:47 -0400 Date: Fri, 4 Aug 2000 12:47:47 -0400 Message-Id: <200008041647.e74Gllt28964@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] first amendment defense Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Consilgere@cs.com wrote: >The Third Reich was legitimate to german citizens. They wanted that >government. It came into power through a democratic election. Now to say it >was legitimate in the land it overtook anywhere else, is a different story. Genocide is not legitimate period regardless of the legitimacy of those elected. 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 Fri Aug 4 12:50:02 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA27423 for dvd-discuss-outgoing; Fri, 4 Aug 2000 12:50:02 -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 MAA27420 for ; Fri, 4 Aug 2000 12:50:01 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id ; Fri, 4 Aug 2000 09:50:09 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1DB3@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] the definition of 'Circumvention' Date: Fri, 4 Aug 2000 09:50:08 -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: Phil Harrison [mailto:pharrison@ramtop.demon.co.uk] > > On Thu, Aug 03, 2000 at 04:42:53PM -0700, Richard Hartman wrote: > > > > > -----Original Message----- > > > From: Chris Moseng [mailto:moseng@mninter.net] > > > > > > I assert that DeCSS is a CSS implementation. > > > > Granted. But it is an implementation created "without the > > authority of the copyright owner", and therein lies the issue. > > Going into the technical details of the implementation such > > as title keys is irrelevant beyond this point. > > > But authorisation of players is granted by the DVDCCA. They > are not the > copyright holders of the DVD content. But authorization has been passed through them contractually. (Or so we must assume, since not all of the contracts involved have been opened to examination...) > > > > The reading here is that CSS is a "procees or treatment" that > > must be applied _with_the_authority_of_the_copyright_owner. > > > > DeCSS does not have that authority. > > > I guess I am having difficulty seeing where the copyright > holder is denying the > right to access the DVD content on non-licensed players It was in the testimony. >(let > alone whether or > not they actually have the right to specify how the content > is accessed). Separate issue ... but 1201 -- as written -- does grant them that right. It specifies that the treatment must be applied with the authorization of the copyright holder. If the copyright holder does not authorize it, it ain't kosher and is therefore circumvention. Now if you want to argue that this part of 1201 is flawed and doesn't belong there ... well ... that's what I'm doing. But you can't overlook it. It's there, and must be dealt with. >It > appears to me that the right to use CSS is granted by the > DVDCCA to the player > manufacturers and to the movie studios. But the DVDCCA is > not the copyright > holder. They don't have to be. The DVDCCA says "you, you and you. you guys can make players and use process X". The copyright holder says "ok, you can play my movie but only if you use process X". The DVDCCA does not have to have the rights to the movie in this model. Alternatively, a contract between the MPAA and the DVDCCA could grant the DVDCCA rights to grant viewing rights. We really don't know. Now either of these associations are just begging for an anti-trust investigation ... but the court has denied that a trust is involved and barred that line of inquiry. So, what are we left with? We are left with the situation that the court has (at least for now) recognized the ability of the copyright holder to grant authorization to a device. The -basis- for the exclusivity of the copyright holder's right to grant this authorization is the phrase "the copyright holder's authorization". That phrase is in opposition to the other section of 1201 that explicitly acknowledges other sources of authorization. That conflict must be resolved. > > (If I'm being completely thick and missing the point, please > feel free to e-mail > me privately.) I dunno. To me the point is that "authorization" is external to the so-called "protection mechanism". You can operate the protection mechanism in 100% conformance with the spec (press all the right buttons, supply all the right pass codes) and still not be -authorized- to do so in the legal sense. -- -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 Aug 4 12:53:03 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA27501 for dvd-discuss-outgoing; Fri, 4 Aug 2000 12:53:03 -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 MAA27498 for ; Fri, 4 Aug 2000 12:53:01 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id ; Fri, 4 Aug 2000 09:53:09 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1DB4@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] the definition of 'Circumvention' Date: Fri, 4 Aug 2000 09:53:08 -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: Harold Eaton [mailto:haceaton@hotmail.com] > Sent: Thursday, August 03, 2000 9:44 PM > To: dvd-discuss@eon.law.harvard.edu > Subject: RE: [dvd-discuss] the definition of 'Circumvention' > > > Richard Hartman > > > Well, not really. Remember who gave us the keys? Would > you have been > > > given the key by the person with authority if they didn't > mean for you > > > to access what's behind the lock with their authorization? > > > >Who said I got the key from somebody with authority? I could've > >just read it from a memo lying open on his desk. Careless of > >him perhaps, but it doesn't grant me the authority to use that > >key. > > > > >It > > > is like me > > > giving my kid the keys to the car, but calling the police > five minutes > > > later and telling them he was driving it without my authorization. > > > >No, it is more like you leaving the keys on the dining room > >table. > > I'm sorry, this is a very poor analogy. I was sold those keys by the > copyright holder and it is very easy for me to prove that > they sold them to > me. But the keys do not convey authority, they only enable access. Or perhaps they do not -solely- convey authority, but only when used in combination with the authorized lock. >If a Burger King sells you a hamburger, are you > AUTHORIZED to eat it? Not in McDonald's lobby ;-) > > If there were some other legal stricture on a movie-key use > (such as minimum > age), presumably I would have to have met that test at the > time of sale. > Presumably the would have stated these restrictions at time of sale ... Divx did. But they didn't, and the authority model is flawed. But it was not sufficiently examined in the testimony and we are stuck with what we have. -- -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 Aug 4 13:03:20 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA28015 for dvd-discuss-outgoing; Fri, 4 Aug 2000 13:03:20 -0400 Received: from tbird.iworld.com ([63.236.72.237]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id NAA28012 for ; Fri, 4 Aug 2000 13:03:19 -0400 Received: (from nobody@localhost) by tbird.iworld.com (8.10.2/8.10.2) id e74H39A30364; Fri, 4 Aug 2000 13:03:09 -0400 Date: Fri, 4 Aug 2000 13:03:09 -0400 Message-Id: <200008041703.e74H39A30364@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] first amendment defense Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Consilgere@cs.com wrote: >Ravi, you missed a reason. The primary and most important reason this is >true is that a recipe tells you how to put other things together. It also tells you to stir. You cannot make a cake out of eggs and flour and just load it into the oven. The ingredients list tells you the ingredients. The recipe gives you instructions. Other >things independent of the physical recipe. Source code doesn't tell you how >to put anything together. Yes it does. It tells the OS (yes source communicates with things other than CPU) to draw a square. It doesn't say put dots on the screen. It says draw a sqaure. It also says put a function behind that square to make it a button. Look at any gtk app source yourself. I'm not your mother. >The source code is what you were supposed to put together in the first place. Absolutely wrong, wrong, wrong! You are to put library objects together. This isn't the 1950's. You put library objects together which are also composed of library objects. It's true that there's a point where you hit the bare metal and I can guarantee you it's not in assembly programming or hex coding. In fact even beyond that you have microcode in between your ASM and the CPU. In fact if you want to do anything other than spin your wheels even your ASM and hex code must interface with the OS. I have an Athlon/Linux based machine. I cannot run ASM demos written by people using DOS calls. Without OS calls there's no high end hardware access. Period. Source is nothing but telling you how to put things together. People read source code to learn on a high level. Source and executable are completely different beasts. 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 Fri Aug 4 13:24:41 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA29451 for dvd-discuss-outgoing; Fri, 4 Aug 2000 13:24:41 -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 NAA29448 for ; Fri, 4 Aug 2000 13:24:37 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id ; Fri, 4 Aug 2000 10:24:47 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1DB5@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] the definition of 'Circumvention' Date: Fri, 4 Aug 2000 10:24:46 -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: Chris Moseng [mailto:moseng@mninter.net] > > To concatenate: > > > Richard Hartman wrote: > > > Granted. But it is an implementation created "without the > > authority of the copyright owner", and therein lies the issue. > > This notion is contradicted in caselaw, congressional intent of 1201, > 1201 itself, and constitutionally. Just because the plaintiffs may > assert they have this right does not mean that they do. Exactly. The law though is written so as to grant them this capability. Since that capability conflicts with congressional intent, the consititution -and- other portions of 1201 itself it must be revised in order to be enforcable. > > > > This is because either the authority to access is conveyed within > > > the CSS system, > > > No. > > Only the plaintiffs have this knowledge. So? It's on a "need to know" basis and apparently John Q. Public does not "need to know". The court seems to have accepted it so we must deal with it. > > > If authorization is external to the CSS system, no CSS > > > implementation is capable of distinguishing whether access is > > > authorized or not. > > > But that _does_not_matter_. Not to the legal issue of > > whether the access was authorized or not. > > But you miss my next statement about how every CSS device is > necessarily > equally capable of circumvention. Not every -authorized- CSS device ... >That's the point. It *does* matter > that DeCSS is no different in use or purpose than any other > implementation. That's the definition of a circumvention device. No. The definition of a circumvention device is one of which the copyright holder says "I did not authorize that device". At least, that is the definition as 1201 is currently written. > If the copyright holder conveys authority external to the > access control > measure, we reach the mind-bending conclusion that every CSS > implementation succumbs to 1201(a)(2) I'd have to see this logic again. It didn't make sense to me the first time. >This is fraud, copyright misuse, > blah, blah, blah. Not to mention just plain ludicrous. Yes, it is. And your point would be ... ? >We've > heard it a > million times. But it isn't NECESSARY. It is only presumed by the > plaintiffs. Far more consistant with congressional intent and > everything > we hold dear that authority is evaluated by the access control measure Yes, to qualify as a TPM this -should- take place. CSS would fail to be recognized as a TPM if this were the test. Unfortunately the court has not seen fit to put this test to the device in question. HOWEVER. Even if we could get by on this in the case of DeCSS, it still leaves COMPLETE control over access to the material in the hands of the copyright holder should they come up with at TPM that passes this test. Control that supercedes "fair use", "first sale" and even expiration of copyright. By taking this approach to the defense of 2600 you leave a ticking time bomb in place to blow up in your face a few months down the road when a -real- TPM is being used to control access to content. > by presense of the approprite disk key, and all implementations are > necessarily protected by 1201. > > Save the determinations of authority for the times when access is made > with an ill-gotten key, or when CSS is fooled in to giving access when > it should not. Simple. Easy. > > > Because the line of argument that asserts that authority is implicit > > in the existance of an implementation is fundamentally flawed. > > Au contraire, it is the Grand Unified Defense of DeCSS that exists > happily with 1201. Nothing can "exist happily" with 1201 until the internal contradiction that grants the copyright holder unexpiring and exclusive control over access has been corrected to conform with existing law and constitutional authority. >Much preferable to a questionable reading of 1201 > that attacks it for weaknesses in the plaintiff's interpretation, yet > makes no defense of the act in question. (I am not even sure what you are talking about here ... clarification?) >At least use both, > right? There > is no law against rigor. All avenues should be pursued when possible, especially since one may succeed where another might fail. My assertion is only that the outcome of each path is not necessarily equally desirable. > > ------------------------------------- > From another thread: > > > Who said I got the key from somebody with authority? I could've > > just read it from a memo lying open on his desk. Careless of > > him perhaps, but it doesn't grant me the authority to use that > > key. > > I don't think you read what I wrote. I said that the key conveys > authority if it was given by the authorized. The memo pad was not > authorized to give you authority. Even that is not necessarily the case. I can give you the key, and be the person capable of granting authorization. But I can say "you may only use that key on thursdays". -That- is my authorization to you ... not the key itself. Authorization is still external to the tokens (i.e. keys) being transferred. > > It's a bit metaphysical, yes, but so what? Actually that's my point. Authorization is entirely metaphysical and the key itself does not convey authorization. >Metaphorically, the key has > an authority bit, and either that bit is on because if was conveyed > appropriately, or it is off because it was not. Not too hard to grasp. Well, my interpretation is that the key has no authority bit. The key grants access, but it may be used in contexts where authority may be present or absent, regardless of who gave you the key initially. > From where you got the key determines if the key conveys authority to > use it. No, the context in which the key is used determines authority. The key itself is not an authority token, it is an access token. Access may be authorized or not (circumvention) even when accomplished with the same key. > > > No, it is more like you leaving the keys on the dining room > > table. > > No, that's not true. Are you suggesting the disk keys were put on my > DVDs absentmindedly? "Whoops, didn't mean to put those on there!" No ... only that the keys on the disk are a convenience. Permission to use them is still external to the system. Not saying that's how it -should- be ... only that that is how it -is- in the eyes of the court. Personally I think that first sale conveys all rights expected and that you may excercise those rights any damned way you please. BUT. (BIG "but" here) 1201 is not written that way. You can't ignore that and proceed with how things "should be", you must correct that so that things -can- be how they should be. > > > And whether you told him he could use the car or not, if > > he is under age he needs authority from an alternate source > > (the state). > > Just because you can take a simple analogy and extrapolate it until it > doesn't fit its purpose doesn't make your point. Meaning: I don't see > how this is relevant. hey, the whole analog was pretty darned loose to begin with. I'll drop it if you will. > > This applies whether or not CSS is involved, so what > > does CSS contribute? Nothing. Except a hook onto which to hang > > the unexpiring control of a work that would not otherwise be > > attainable. > > Only in your tainted view of 1201. I still think that > approached in the > right way, it can be a meaningful law. Just because it can be misread > doesn't mean it is fundamentally unsound. But that is how it -is- being read. Moreover, I do not see how that section can be read otherwise. Please show how that can be read so as not to cause these conflicts. >It doesn't > *necessarily* break > all the bounds of the constitution, anti-trust, copyright and reason. > Just when the plaintiffs try to interpret it to their ends. It ain't > necessarily so. > > CSS can be a perfectly fine 1201 access control measure... that grants > access on a regular basis. So what? If I subscribe to HBO, can I say > that Dish Network's access control measure is invalid because I always > have access? No! On the other hand, if Dish Network's access control > measure is not patented, can I reverse engineer and implement it? Yes! > My implementation would be no more capable of circumvention than Dish > Network's. Yes it could. Authorization to access is not in the implementation, but in the payment made to Dish Network. If you make your box and watch the Evander/Hollyfield fight w/o paying Dish Network then you are circumventing. Otoh if you do pay them you could indeed use your own box and be entirely in compliance. Again though, the authorization is external to the technical measure. > > > The trouble is that there are other sources of authority which this > > law is not taking into account (despite the clause stating that it > > can not be read to exclude that authority). > > I think that is a trouble with the plaintiff's idea of the > law, not with > the law itself. Again, I do not see how that section of the law can be read otherwise. It -should- be different, but it is not. Please show me how you are reading it such the conflict does not occur. >The rulings in this case will imbue substance to the > intangible concepts in 1201, And that is why I would rather push to see the conflict resolved rather than skate by showing that CSS does not qualify as an actual TPM by virtue of the fact that it makes no affirmative test of authorization. >and yes that substance could be violative > of everything we know about everything... but more likely, with the > right argument, DeCSS will find its place defending the rights of > engineers and manufacturers to create implementations of > access control > mechanisms without the "authority" of the copyright holder > hanging over > their heads. Because it obviously doesn't belong there True. >and it > wasn't put > there by 1201, despite what you keep saying. But it was put there by 1201. In black and white. Despite what -you- keep denying. >The plaintiffs are trying > to duct tape it up there in Judge Kaplan's court, but it will > not stick. We can only pray that this is so. > ------------------------------------------------- > Lastly: > > > You are wasting your time trying to assert an interpretation > > of the conveyance of authority by technical means if it is > > just to conform to 1201 as it is written. > > I always figured that a sound interpretation of a law, an > interpretation > that conforms with copyright, the constitution, congressional > intent and > prior case law, would be preferrable to an assertion that the law is a > hopeless tangle all because of our plaintiff's misreading. Well ... if you believe the law can be interpreted that way without being corrected, more power to you. I think we both agree on what the law -should- be. The big difference is that I see a requirement for an actual correction in order to make it so while you do not. I am not a laywer but I am an amateur semanticist, and to me this is an undeniable internal conflict in the way the law was written. I would prefer that the possibility for this misreading be removed before it is upheld and becomes precedent. > It's possible > that Corley can win AND 1201 can stand. That doesn't mean it can't be > abused by copyright holders in other ways; but those other > ways will see > their days in court, too. > > Like I say, though, it all depends on where the plaintiffs > believe they > give us authorization to access the copies on our DVDs. Unfortunately that ship has sailed. Their authorization model was not explored fully in the testimony and we can't get it in there now no matter how much we would like to. >One > makes sense, > the rest will cause them trouble. Authorization remains the missing > piece of the puzzle that can exonerate 1201 or will damn it. Yes. Authorization is certainly the key. First in that the authorization model of the plaintiffs is flawed. But also in that one portion of 1201 is written such that authorization is required from one particulaer source among the various possible legitimate sources of authorization. >I'm just > trying to ensure that it is clear that: > > **DeCSS is no more or less a 1201(a)(2)(A) or (a)(2)(B) circumvention > device than every other CSS implementation.** > > I see this as a key to defending DeCSS from 1201(a)(2). It could certainly do to defend DeCSS. But it would leave the time bomb of single-source authorization ticking away ... -- -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 Aug 4 13:37:36 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA29642 for dvd-discuss-outgoing; Fri, 4 Aug 2000 13:37:36 -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 NAA29639 for ; Fri, 4 Aug 2000 13:37:35 -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 MAA21681 for ; Fri, 4 Aug 2000 12:37:24 -0500 (CDT) Message-ID: <398AFF35.F6680E07@uic.edu> Date: Fri, 04 Aug 2000 12:36:54 -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] Contracts Content-Type: text/plain; charset=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 don't understand how the MPAA can, on one hand, say that DeCSS is illegal because the set of contracts between the MPAA, the DVD-CCA, and the player manufacturers preclude any alternate implementations of CSS, and at the same time refuse to produce those contracts. Or is this how contract law works? From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 4 13:42:41 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA29758 for dvd-discuss-outgoing; Fri, 4 Aug 2000 13:42:41 -0400 Received: from web6402.mail.yahoo.com (web6402.mail.yahoo.com [128.11.22.150]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id NAA29755 for ; Fri, 4 Aug 2000 13:42:40 -0400 Message-ID: <20000804174223.13882.qmail@web6402.mail.yahoo.com> Received: from [207.1.61.98] by web6402.mail.yahoo.com; Fri, 04 Aug 2000 10:42:23 PDT Date: Fri, 4 Aug 2000 10:42:23 -0700 (PDT) From: Pete Broule Subject: RE: [dvd-discuss] the definition of 'Circumvention' To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-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: > Actually what I am saying -- and I think what the Ps are > saying, although they want to avoid coming straight out > on this -- is that there is no technical component of > the system that conveys authorization. Authorization > is conveyed contractually. You can have devices that > function identically but one could be authorized and > the other not if Jack V. came to your house and said > "you can't use that". If so, I think we should take them up on this. 1201(a)(3)(B) says that a technological measure must require something *with the authority of the copyright owner*. Now, as I wrote in another post, I don't understand what exactly that could mean, but whatever it means, if, as you say, no technical component at all conveys authorization, then obviously the technological measure does not require any presence of authority. Thus, CSS does not effectively control access and is not actionable under 1201(a). __________________________________________________ Do You Yahoo!? Kick off your party with Yahoo! Invites. http://invites.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 4 13:48:25 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA29907 for dvd-discuss-outgoing; Fri, 4 Aug 2000 13:48:25 -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 NAA29904 for ; Fri, 4 Aug 2000 13:48:24 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id ; Fri, 4 Aug 2000 10:48:31 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1DB6@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] DeCSS: No title keys, no descrambling, no (a)(2 ) Date: Fri, 4 Aug 2000 10:48:31 -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: Chris Moseng [mailto:moseng@mninter.net] > Sent: Friday, August 04, 2000 9:41 AM > To: dvd-discuss@eon.law.harvard.edu > Subject: Re: [dvd-discuss] DeCSS: No title keys, no descrambling, no > (a)(2) > > > Richard Hartman wrote: > > > I do not believe that this has been established. If it has, > > it would be very good. As far as I can tell, though, the title > > is necessary to gain access -- but it does not in and of itself > > signify any sort of grant of authority. If I am mistaken in this, > > please point out where the equivilance between title key and > > authorization was established. > > You're right that it hasn't been established, but it makes sense under > 1201, while anything else comes out as nonsense. WE can establish it. How? Testimony is over. > > Sure, dad made you a copy of his car keys ... but he told you > > that you could only drive the car every other thursday night. > > Dad's authority over the car isn't granted by copyright, but > by property > law. The plaintiffs' authority over access isn't granted by copyright, but by 1201. You are still arguing from classic copyright positions without recognizing the new control granted by 1201. >He is capable of invoking and revoking his authority at > will in the > absense of a contract. If dad wrote a book, though, and wrote on the > title page I could only read it on thursday nights, the judge > would tell > him to shove it. Unfortunately the issue is a bit more disguised than that here. 1201 appears to grant the copyright holder exclusive rights to grant authority to accessing devices. Kaplan didn't even go into -how- that grant of authority is conveyed, so we must assume that he has taken it as a given. My whole point is that this exclusive grant is in conflict with the section of 1201 that recognizes other sources of authority; and it is also in conflict with the constitutional mandate for congress to grant protections for -limited- terms. > My DVD packages don't even mention any restrictions that I do or might > have pertaining to access authorization. Apparently they don't need to. Kaplan scotched the examination of the chain of authorization so apparently he thinks he "gets" it. > > Merely possessing the key does not imply authorization. > > It's what 1201 intended. How so? 1201 does not even mention keys... >Either it implies authorization or 1201 isn't > worth the reams of paper it was printed on. I tend to side with the > former, and I suspect that judges would want to, too. At the moment, I believe the latter. It can be corrected, but as written there is a fundamental -- and dangerous -- flaw there. > I still think that this position concedes too much and engages in the > same misunderstanding of the law that the plaintiffs are victim to in > the name of declaring it unconstitutional. Unfortunately I do not believe that it is a misreading. I can read, and it is there in black and white. Single source of authorization for applying the treatment despite whatever other sources of authorization may exist for granting access to the material protected by the treatment. Yes you can have the apple, but you can't open the refrigerator. Please show me how this can be read otherwise. >I hesitate to > believe that a > law can be overturned based on a misreading, if there is a reading in > harmony with reality that doesn't conflict with caselaw, constitution, > etc. I am not convinced there is such a reading ... not without turning a "blind eye" to the offending clause. -- -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 Aug 4 14:29:43 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA30411 for dvd-discuss-outgoing; Fri, 4 Aug 2000 14:29:43 -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 OAA30408 for ; Fri, 4 Aug 2000 14:29:40 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id ; Fri, 4 Aug 2000 11:29:51 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1DB7@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] My personal submission to the Copyright Office Date: Fri, 4 Aug 2000 11:29:48 -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 Hmmm... the RFC is for sections 109 and 117 while my comments are primarily on 1201 ... does that mean that I shouldn't submit them here? The do ask in a specific question about the effects of "the enactment of prohibitions on circumvention of technological protection measures" ... Advice? -- -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, August 04, 2000 9:47 AM > To: dvd-discuss@eon.law.harvard.edu > Subject: RE: [dvd-discuss] My personal submission to the Copyright > Office > > > Bryan Taylor writes: > > The deadline is TODAY, 8/4/00!! Reply comments are due 9/5/00. > > > > > http://www.eff.org/pub/Intellectual_property/DMCA/20000605_dmc a_comments_request.html > > I have submitted mine. Here's the final: > http://bioinformatics.ucsf.edu/bwtaylor/dvd/LOC109.pdf > > Robert, when you have your final up, please post it. Already done... rst From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 4 14:32:22 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA30754 for dvd-discuss-outgoing; Fri, 4 Aug 2000 14:32:22 -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 OAA30751 for ; Fri, 4 Aug 2000 14:32:21 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id ; Fri, 4 Aug 2000 11:32:32 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1DB8@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] the definition of 'Circumvention' Date: Fri, 4 Aug 2000 11:32:31 -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: Bryan Taylor [mailto:bryan_w_taylor@yahoo.com] > Sent: Friday, August 04, 2000 9:38 AM > To: dvd-discuss@eon.law.harvard.edu > Subject: RE: [dvd-discuss] the definition of 'Circumvention' > > > > --- Richard Hartman wrote: > > I am not sure, but I think the RE exception let's you > > create DeCSS ... but doesn't save you from the "trafficking" > > section if you attempt to distribute it. That would mean > > that everybody that had the capability to create their > > own decoder could do so, but they couldn't give it to > > anybody else. > > > > Somebody correct me if I am wrong about this. > > You read (f)(2) correctly, but you didn't read (f)(3): > > 1201(f)(3) "The information acquired through the acts permitted under > paragraph (1), and the means permitted under paragraph (2), > may be made > available to others if the person referred to in paragraph (1) or (2), > as the case may be, provides such information or means solely for the > purpose of enabling interoperability of an independently created > computer program with other programs, and to the extent that doing so > does not constitute infringement under this title or violate > applicable > law other than this section. " > > Thanks ... it's been so long ... -- -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 Aug 4 14:39:13 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA30928 for dvd-discuss-outgoing; Fri, 4 Aug 2000 14:39:13 -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 OAA30925 for ; Fri, 4 Aug 2000 14:39:12 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id ; Fri, 4 Aug 2000 11:39:23 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1DB9@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] the definition of 'Circumvention' Date: Fri, 4 Aug 2000 11:39:21 -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: Robert S. Thau [mailto:rst@ai.mit.edu] > Sent: Friday, August 04, 2000 9:46 AM > To: dvd-discuss@eon.law.harvard.edu > Subject: RE: [dvd-discuss] the definition of 'Circumvention' > > > Richard Hartman writes: > > Granted. But it is an implementation created "without the > > authority of the copyright owner", and therein lies the issue. > > Going into the technical details of the implementation such > > as title keys is irrelevant beyond this point. > > However, remember that the actual wording of the law is ambiguous. > An "effective access control" is defined as a technical measure which > "requires the application of information, or a process or treatment, > with the authority of the copyright owner, to provide access to [a] > work." > > If you interpret the law to say that the copyright owners are > empowered to grant or deny authority for particular processes or > treatments, then you get all the problems you're discussing. > > If, on the other hand, this wording means that the *technical measure* > must check that the *viewer* has the authority of the copyright owner > to view the *particular work*, then I believe most of those problems > go away. I would certainly be behind that reading, but I can not see it. There are no requirements that the "technical measure" perform any checks -- only that it require the application of a process to provide access to the work, and that said application is authorized. That the check for authorization be part of the process is not required. > > The law can be read either way. (It's almost as if it was *meant* to > be read both ways, so somebody could tell Congress it meant one thing, > and the courts another; they couldn't have gotten it through Congress > if it granted patent-like rights on its face). > > On this second reading of the law, providing an alternative, > functionally equivalent implementation of a technical measure (e.g., > DeCSS for CSS) can never be circumvention, since, by hypothesis, the > functionally equivalent implementation performs the exact same tests > to the same effect. Circumvention would consist only of devices which > defeat or bypass that test --- which DeCSS obviously doesn't do. > Again, there is no requirement that a check on the authority be made -- only a requirement that authority is granted. True, in any rational definition of a protection measure such a check would be required ... and since CSS makes on such checks it would not even qualify -as- a protection measure. However, while the law gives a superficial definition of "effectively controls access to a work", it does not give one sufficiently detailed to require the presence of an actual authority check as part of the process. -- -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 Aug 4 14:44:54 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA31395 for dvd-discuss-outgoing; Fri, 4 Aug 2000 14:44:54 -0400 Received: from hotmail.com (f283.law9.hotmail.com [64.4.8.158]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id OAA31392 for ; Fri, 4 Aug 2000 14:44:51 -0400 Received: (qmail 46971 invoked by uid 0); 4 Aug 2000 18:45:07 -0000 Message-ID: <20000804184507.46970.qmail@hotmail.com> Received: from 128.244.34.133 by www.hotmail.com with HTTP; Fri, 04 Aug 2000 11:45:07 PDT X-Originating-IP: [128.244.34.133] From: "Harold Eaton" To: dvd-discuss@eon.law.harvard.edu Subject: RE: [dvd-discuss] DeCSS: No title keys, no descrambling, no (a)(2 ) Date: Fri, 04 Aug 2000 14:45:07 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 Richard Hartman wrote >I do not believe that this has been established. If it has, >it would be very good. As far as I can tell, though, the title >is necessary to gain access -- but it does not in and of itself >signify any sort of grant of authority. If I am mistaken in this, >please point out where the equivilance between title key and >authorization was established. > >Sure, dad made you a copy of his car keys ... but he told you >that you could only drive the car every other thursday night. > >Merely possessing the key does not imply authorization. It's true that it hasn't been established that the title key conveys authority, but it could be someday. Presently nobody knows how ''authority'' is conveyed. You surmise that it is reasonable to believe that authority is granted (or more precisely revealed that it is NOT granted) on the whim of the copyright holder, at a time and place of their chosing. There is so much wrong with that concept that I don't know where to begin. After all, I could have changed your analogy to: "Sure dad bought you a Sony DVD player ... but Warner Brothers never wrote to you saying you could watch the copy of Sleepless in Seattle that you bought. Merely possessing a licensed DVD player and an original DVD disc does not imply authorization ..." ________________________________________________________________________ Get Your Private, Free E-mail from MSN Hotmail at http://www.hotmail.com From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 4 14:46:47 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA31641 for dvd-discuss-outgoing; Fri, 4 Aug 2000 14:46:47 -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 OAA31628 for ; Fri, 4 Aug 2000 14:46:31 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id OAA23698 for dvd-discuss@eon.law.harvard.edu; Fri, 4 Aug 2000 14:51:22 -0400 Date: Fri, 4 Aug 2000 14:51:17 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] the definition of 'Circumvention' Message-ID: <20000804145117.C23349@eldritchpress.org> References: <5A8391CA2D9ED311AFAA080009D982B10B1DA7@mail2.onetouch.com> <200008041645.MAA00076@soggy-fibers.ai.mit.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <200008041645.MAA00076@soggy-fibers.ai.mit.edu>; from rst@ai.mit.edu on Fri, Aug 04, 2000 at 12:45:53PM -0400 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, Aug 04, 2000 at 12:45:53PM -0400, Robert S. Thau wrote: >... Richard Hartman writes: > > However, remember that the actual wording of the law is ambiguous. > An "effective access control" is defined as a technical measure which > "requires the application of information, or a process or treatment, > with the authority of the copyright owner, to provide access to [a] > work." > > If you interpret the law to say that the copyright owners are > empowered to grant or deny authority for particular processes or > treatments, then you get all the problems you're discussing. > > If, on the other hand, this wording means that the *technical measure* > must check that the *viewer* has the authority of the copyright owner > to view the *particular work*, then I believe most of those problems > go away. > > The law can be read either way. (It's almost as if it was *meant* to > be read both ways, so somebody could tell Congress it meant one thing, > and the courts another; they couldn't have gotten it through Congress > if it granted patent-like rights on its face). .... Exactly. Congress passed a contradictory law. 1201(a) can't be rescued by refusing to recognize the DMCA as a copyright law--it is included in copyright law title 17 which has to be interpreted as a whole. But even if you restrict consideration to only the parts that MPAA wants to consider, it is still contradictory and invalid. Even the Librarian of Congress cannot rescue it. I believe we have shown that on ANY interpretation the DMCA is fatally self-contradictory and in conflict with copyright law, congressional intent, and the Constitution. I don't believe a law has to be even this bad for a judge to throw it out. It should just be necessary to show that one clause in it was obviously important enough for congresspeople to pass the law with it in, and then if it is to be excluded from the interpretation the whole act falls. If not in district court then on appeal. It Judge Kaplan doesn't take the chance to throw it out, there will be endless further garbage suits, of copyright holders dreaming up more schemes to control use, and idiotic suits and PHBs trying to put software and t-shirts into jail. Good job, guys! for the glossary: TPM = Texturized Protein Meat-substitute From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 4 14:49:09 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA31765 for dvd-discuss-outgoing; Fri, 4 Aug 2000 14:49:09 -0400 Received: from mail2.onetouch.com (mail2.onetouch.com [205.180.182.6]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id OAA31762 for ; Fri, 4 Aug 2000 14:49:06 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id ; Fri, 4 Aug 2000 11:49:14 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1DBA@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] the definition of 'Circumvention' Date: Fri, 4 Aug 2000 11:49:13 -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: Pete Broule [mailto:pbroule@yahoo.com] > Sent: Friday, August 04, 2000 10:42 AM > To: dvd-discuss@eon.law.harvard.edu > Subject: RE: [dvd-discuss] the definition of 'Circumvention' > > > Richard Hartman wrote: > > Actually what I am saying -- and I think what the Ps are > > saying, although they want to avoid coming straight out > > on this -- is that there is no technical component of > > the system that conveys authorization. Authorization > > is conveyed contractually. You can have devices that > > function identically but one could be authorized and > > the other not if Jack V. came to your house and said > > "you can't use that". > > If so, I think we should take them up on this. > 1201(a)(3)(B) says that a technological measure must require > something *with the authority of the copyright owner*. > Now, as I wrote in another post, I don't understand what > exactly that could mean, but whatever it means, if, as you say, > no technical component at all conveys authorization, then > obviously the technological measure does not require any > presence of authority. Thus, CSS does not effectively control > access and is not actionable under 1201(a). > The thing is that it the law does not require that the technological measure requires the presence of authority. It only requires that the -application- of the measure be made "with 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 Aug 4 14:56:07 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA31867 for dvd-discuss-outgoing; Fri, 4 Aug 2000 14:56:07 -0400 Received: from hotmail.com (f320.law9.hotmail.com [64.4.8.195]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id OAA31863 for ; Fri, 4 Aug 2000 14:56:04 -0400 Received: (qmail 59742 invoked by uid 0); 4 Aug 2000 18:55:46 -0000 Message-ID: <20000804185546.59741.qmail@hotmail.com> Received: from 216.181.38.135 by www.hotmail.com with HTTP; Fri, 04 Aug 2000 11:55:46 PDT X-Originating-IP: [216.181.38.135] From: "Richard Bowers" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] first amendment defense Date: Fri, 04 Aug 2000 14:55:46 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 So, if I give you a piece of paper with source code, you don't need a computer? Mind you, I think this whole discussion is of the troll variety; but I can't agree that any user written program is whole in and of itself. You need compilers, linkers, third party objects, a computer, and a dvd player. A person needs to put the DVD in the player, compile the program, link the program, execute it. (And, before doing this, install the compiler and linker). To make frozen pizza, I set the dial and put the pizza in the oven - much easier and without expressive content, IMHO. And yet, the label on the pizza still says "Copyright". The problem with this whole argument is that both sides are trying to prove their points using facts that are - to them - axiomatic. Such arguments generally end up invoking Godwin's Law at some point (as this one already has), and are a real waste of bandwidth. Since it doesn't seem to contribute to the defense, can it be safely dropped? Richard Bowers >From: Consilgere@cs.com >Reply-To: dvd-discuss@eon.law.harvard.edu >To: dvd-discuss@eon.law.harvard.edu >Subject: Re: [dvd-discuss] first amendment defense >Date: Fri, 4 Aug 2000 12:23:49 EDT > >Ravi, you missed a reason. The primary and most important reason this is >true is that a recipe tells you how to put other things together. Other >things independent of the physical recipe. Source code doesn't tell you >how >to put anything together. The source code is what you were supposed to put >together in the first place. You cannot separate the source code from the >executable. They're part and parcel. ________________________________________________________________________ Get Your Private, Free E-mail from MSN Hotmail at http://www.hotmail.com From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 4 15:11:20 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA00635 for dvd-discuss-outgoing; Fri, 4 Aug 2000 15:11:20 -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 PAA00632 for ; Fri, 4 Aug 2000 15:11:19 -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 PAA03206 for ; Fri, 4 Aug 2000 15:11:09 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id PAA00688; Fri, 4 Aug 2000 15:11:08 -0400 (EDT) Date: Fri, 4 Aug 2000 15:11:08 -0400 (EDT) Message-Id: <200008041911.PAA00688@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Contracts In-Reply-To: <398AFF35.F6680E07@uic.edu> References: <398AFF35.F6680E07@uic.edu> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu John Schulien writes: > I don't understand how the MPAA can, on one hand, > say that DeCSS is illegal because the set of contracts > between the MPAA, the DVD-CCA, and the player > manufacturers preclude any alternate implementations > of CSS, and at the same time refuse to produce those > contracts. Or is this how contract law works? Think about patents. A patent-holder has the exclusive, monopoly right to manufacture their patented gizmo, or to authorize other folks to do it. They can choose to authorize some people, and not authorize others, based on any criteria they choose, and if any unauthorized person makes a copy of the gizmo, they can sue. But the basis of the suit is *not* the contracts between the patent-holder and the licensees (if, indeed, there are any). The terms of those contracts may be public or not, it just doesn't matter. Instead, the basis of the suit is the *patent*, an explicit (and public) grant of a monopoly by the government. And what the MPAA claims in Universal v. Corley is a similar monopoly right over CSS, and, implicitly, any other process which is "effective access control" --- which on their reading of the law, could be just about anything. (The series of "abuse of patent"/"abuse of copyright" court opinions, throws a slight monkey wrench into this picture by limiting possible terms of the license; according to those court decisions, it is not permissible to use a patent grant to gain a monopoly over something else which is not directly the subject matter of the patent --- like, for instance, requiring that only your films be shown via your patented movie projector, to cite one genuine early case. And the movie studios are arguably doing exactly that by using their supposed "access control" right to mandate use controls such as region coding. But that's another kettle of fish; the discretion of patent holders is otherwise pretty wide-ranging). rst From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 4 15:15:03 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA00796 for dvd-discuss-outgoing; Fri, 4 Aug 2000 15:15:03 -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 PAA00793 for ; Fri, 4 Aug 2000 15:15:02 -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 PAA03711 for ; Fri, 4 Aug 2000 15:14:52 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id PAA00748; Fri, 4 Aug 2000 15:14:51 -0400 (EDT) Date: Fri, 4 Aug 2000 15:14:51 -0400 (EDT) Message-Id: <200008041914.PAA00748@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: RE: [dvd-discuss] the definition of 'Circumvention' In-Reply-To: <5A8391CA2D9ED311AFAA080009D982B10B1DB9@mail2.onetouch.com> References: <5A8391CA2D9ED311AFAA080009D982B10B1DB9@mail2.onetouch.com> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Richard Hartman writes: > > If, on the other hand, this wording means that the *technical measure* > > must check that the *viewer* has the authority of the copyright owner > > to view the *particular work*, then I believe most of those problems > > go away. > > I would certainly be behind that reading, but I can not see it. > There are no requirements that the "technical measure" perform > any checks -- only that it require the application of a process > to provide access to the work, and that said application is authorized. > That the check for authorization be part of the process is not > required. Look, if you're saying it's bad English, and ambiguous, I can see that. But I'll remind you that the first reading of David Carson, of the copyright office, and of Ingo Molnar, a pretty bright software developer, both were exactly as I have it. So it certainly strikes me as a possible, plausible reading of the law. There's a pretty detailed parse of the law's phraseology, originally from Bryan's essay, in my own LOC submission, which may be germane: So, ``effectively control access'' is defined in terms of ``gain access to the work'' --- which is not, itself, defined in the DMCA. Seeking definitions from common language, we find that any common dictionary (e.g., Merriam-Webster) defines three senses for the word ``access'': it can refer to a right, a means, or an act. The most straightforward interpretation, in context, is that the technological measure must govern the {\em act} of access --- that is, it must, ``in the ordinary course of its operation'', perform some explicit test that the user is authorized by the copyright owner to view a particular work, and allow the act of viewing the work only in case that he is, in fact, authorized. But, there are other possible readings; let us consider them. Clearly, it makes no sense to adopt the sense of ``access'' in which to ``gain access'' is to be granted the legal right to view something. That would reduce the law to nonsense; it would speak of technical means which somehow require the application of a process to a copyrighted work in order to allow a viewer to form a contract. This leaves the interpretation in which ``access'' is a means, and the technical measure checks whether the viewer is using authorized means of acccessing the work. However, the technical measure itself is necessarily part of the means of access, so at the very least this reading lends a strange circularity to 1201(a)(3)(B). But nevertheless, as we shall see, that is the plaintiffs' reading. (Strangely, they seem to think this control extends over only means which employ cryptography in some way, even though the definition of ``effective access control'' never mentions cryptography, encryption, or decryption; of that, more anon). We will also see that this is how CSS itself is designed to function --- it does not and cannot check that the user has been authorized by the copyright owner to perform the act of access --- and we shall show see that this interpretation is at variance with both expressed Congressional intent in passing the DMCA, and with basic Constitutional principles regarding intellectual property protection. rst From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 4 15:28:04 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA01116 for dvd-discuss-outgoing; Fri, 4 Aug 2000 15:28:04 -0400 Received: from web6405.mail.yahoo.com (web6405.mail.yahoo.com [128.11.22.153]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id PAA01113 for ; Fri, 4 Aug 2000 15:28:02 -0400 Message-ID: <20000804192748.26079.qmail@web6405.mail.yahoo.com> Received: from [207.1.61.98] by web6405.mail.yahoo.com; Fri, 04 Aug 2000 12:27:48 PDT Date: Fri, 4 Aug 2000 12:27:48 -0700 (PDT) From: Pete Broule Subject: RE: [dvd-discuss] the definition of 'Circumvention' To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-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 thing is that it the law does not require that the > technological measure requires the presence of authority. > It only requires that the -application- of the measure > be made "with authority". First off, I take it you interpret "with the authority of the copyright owner" as modifying "the application." Let's take it from here. The law says "... the measure ... requires application ..., with the authority of the copyright owner, to gain access to the work." We could rewrite this as "... the measure ... requires ... the authorized [by the copyright owner] application ..., to gain access to the work." The measure must require _authorized_ application. If the measure doesn't care whether the application is authorized or not, it follows that it does not require authorized application. (Assuming that unauthorized application is at all possible, of course.) __________________________________________________ Do You Yahoo!? Kick off your party with Yahoo! Invites. http://invites.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 4 15:29:01 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA01169 for dvd-discuss-outgoing; Fri, 4 Aug 2000 15:29:01 -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 PAA01162 for ; Fri, 4 Aug 2000 15:28:58 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id ; Fri, 4 Aug 2000 12:29:09 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1DBB@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] DeCSS: No title keys, no descrambling, no (a)(2 ) Date: Fri, 4 Aug 2000 12:29:08 -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: Harold Eaton [mailto:haceaton@hotmail.com] > Sent: Friday, August 04, 2000 11:45 AM > To: dvd-discuss@eon.law.harvard.edu > Subject: RE: [dvd-discuss] DeCSS: No title keys, no descrambling, no > (a)(2 ) > > > Richard Hartman wrote > > >I do not believe that this has been established. If it has, > >it would be very good. As far as I can tell, though, the title > >is necessary to gain access -- but it does not in and of itself > >signify any sort of grant of authority. If I am mistaken in this, > >please point out where the equivilance between title key and > >authorization was established. > > > >Sure, dad made you a copy of his car keys ... but he told you > >that you could only drive the car every other thursday night. > > > >Merely possessing the key does not imply authorization. > > It's true that it hasn't been established that the title key conveys > authority, but it could be someday. Presently nobody knows > how ''authority'' > is conveyed. You surmise that it is reasonable to believe > that authority is > granted (or more precisely revealed that it is NOT granted) > on the whim of > the copyright holder, at a time and place of their chosing. > There is so > much wrong with that concept that I don't know where to begin. Point of order. I do not believe this to be reasonable. I do believe, however, that it is the interpretation that the court is operating under since it disallowed questioning aimed at determining the authority model as being irrelevant. > > After all, I could have changed your analogy to: > > "Sure dad bought you a Sony DVD player ... but Warner Brothers > never wrote to you saying you could watch the copy of Sleepless > in Seattle that you bought. > > Merely possessing a licensed DVD player and an original DVD disc > does not imply authorization ..." > Strictly speaking, you might be correct. Except that their authority model -- to the extent that it was brought out at all -- indicates that all licensed DVD players are authorized to apply "the process" (CSS). Otoh, there is nothing in the record that would not permit Jack Valenti to come to your house and say "no, you can't play it anymore" ... -- -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 Aug 4 15:30:08 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA01300 for dvd-discuss-outgoing; Fri, 4 Aug 2000 15:30:08 -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 PAA01297 for ; Fri, 4 Aug 2000 15:30:07 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id ; Fri, 4 Aug 2000 12:30:18 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1DBC@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] the definition of 'Circumvention' Date: Fri, 4 Aug 2000 12:30:17 -0700 MIME-Version: 1.0 X-Mailer: Internet Mail Service (5.5.2650.21) Content-Type: text/plain; charset="iso-8859-1" Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > -----Original Message----- > From: Eric Eldred [mailto:eldred@eldritchpress.org] > Sent: Friday, August 04, 2000 11:51 AM > To: dvd-discuss@eon.law.harvard.edu > Subject: Re: [dvd-discuss] the definition of 'Circumvention' > > > On Fri, Aug 04, 2000 at 12:45:53PM -0400, Robert S. Thau wrote: > >... Richard Hartman writes: > > > > However, remember that the actual wording of the law is ambiguous. > > An "effective access control" is defined as a technical > measure which > > "requires the application of information, or a process or treatment, > > with the authority of the copyright owner, to provide access to [a] > > work." > > > > If you interpret the law to say that the copyright owners are > > empowered to grant or deny authority for particular processes or > > treatments, then you get all the problems you're discussing. > > > > If, on the other hand, this wording means that the > *technical measure* > > must check that the *viewer* has the authority of the > copyright owner > > to view the *particular work*, then I believe most of those problems > > go away. > > > > The law can be read either way. (It's almost as if it was > *meant* to > > be read both ways, so somebody could tell Congress it meant > one thing, > > and the courts another; they couldn't have gotten it > through Congress > > if it granted patent-like rights on its face). .... > > Exactly. Congress passed a contradictory law. 1201(a) can't > be rescued by refusing to recognize the DMCA as a copyright law--it > is included in copyright law title 17 which has to be interpreted > as a whole. But even if you restrict consideration to only the > parts that MPAA wants to consider, it is still contradictory > and invalid. Even the Librarian of Congress cannot rescue it. > > I believe we have shown that on ANY interpretation the DMCA is > fatally self-contradictory and in conflict with copyright law, > congressional intent, and the Constitution. > > I don't believe a law has to be even this bad for a judge to > throw it out. It should just be necessary to show that one > clause in it was obviously important enough for congresspeople > to pass the law with it in, and then if it is to be excluded from > the interpretation the whole act falls. If not in district court > then on appeal. > > It Judge Kaplan doesn't take the chance to throw it out, > there will be endless further garbage suits, of copyright > holders dreaming up more schemes to control use, and idiotic > suits and PHBs trying to put software and t-shirts into jail. > > Good job, guys! > > for the glossary: > TPM = Texturized Protein Meat-substitute > > Thanks, Eric. Now ... where does this go from here? -- -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 Aug 4 15:54:37 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA02954 for dvd-discuss-outgoing; Fri, 4 Aug 2000 15:54:37 -0400 Received: from mercury.clearway.com (c100.clearway.com [199.103.231.100]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA02951 for ; Fri, 4 Aug 2000 15:54:35 -0400 Received: by c100.clearway.com with Internet Mail Service (5.5.2650.21) id ; Fri, 4 Aug 2000 15:58:12 -0400 Message-ID: From: Leland Ray To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] DeCSS: No title keys, no describing, no (a)(2) Date: Fri, 4 Aug 2000 15:58:12 -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 > Chris Moseng wrote (quoting Richard Hartman): >> Sure, dad made you a copy of his car keys ... but he told you >> that you could only drive the car every other Thursday night. >Dad's authority over the car isn't granted by copyright, but by property >law. He is capable of invoking and revoking his authority at will in the >absense of a contract. If dad wrote a book, though, and wrote on the >title page I could only read it on thursday nights, the judge would tell >him to shove it. No, when Dad says "you can drive the car in xxx nights, and you take the copy of the keys, that is a contract, and you have agreed to it, and the keys are the consideration. The rest of your argument is correct -- a creative work protected by copyright is not a physical object and thus the creator only has few rights after transfer of physical possession. From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 4 15:59:14 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA03077 for dvd-discuss-outgoing; Fri, 4 Aug 2000 15:59:14 -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 PAA03074 for ; Fri, 4 Aug 2000 15:59:13 -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 PAA00312; Fri, 4 Aug 2000 15:58:59 -0400 (EDT) Message-ID: <398B20D5.750F13C9@mit.edu> Date: Fri, 04 Aug 2000 16:00:21 -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] the definition of 'Circumvention' References: <5A8391CA2D9ED311AFAA080009D982B10B1DB5@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: > > > > This is because either the authority to access is conveyed within > > > > the CSS system, > > > > > No. > > > > Only the plaintiffs have this knowledge. > > So? It's on a "need to know" basis and apparently John Q. Public > does not "need to know". The court seems to have accepted it so > we must deal with it. We need to make the legal argument that the consumer "needs to know." Under this model, after October, if the Panasonic player key is revoked, and my father goes to Blockbuster and complains that new DVDs don't play in his Panasonic player then, while old ones still work: 1) He has violated 1201 by "circumventing" CSS (using an implementation no longer blessed by the DVD CCA). 2) Proving circumvention is now open-and-shut given that he has confessed his use of an unauthorized player to a Blockbuster employee (who would almost certainly cooperate with the legal actions of the MPAA's partner, the DVD CCA). What are the penalties for violating 1201? Whatever they are, consumers should have to be told that they need to monitor the authorization status of their player if they want to stay on the right side of the law. - Ravi Nanavati From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 4 16:10:58 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA03517 for dvd-discuss-outgoing; Fri, 4 Aug 2000 16:10:58 -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 QAA03514 for ; Fri, 4 Aug 2000 16:10:57 -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 QAA05576; Fri, 4 Aug 2000 16:10:36 -0400 (EDT) Message-ID: <398B238E.C387D20D@mit.edu> Date: Fri, 04 Aug 2000 16:11:58 -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] the definition of 'Circumvention' References: <5A8391CA2D9ED311AFAA080009D982B10B1DB9@mail2.onetouch.com> <200008041914.PAA00748@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: > (Strangely, they seem to think this control extends over only means > which employ cryptography in some way, even though the definition of > ``effective access control'' never mentions cryptography, encryption, > or decryption; of that, more anon). We will also see that this is how > CSS itself is designed to function --- it does not and cannot check > that the user has been authorized by the copyright owner to perform > the act of access --- and we shall show see that this interpretation > is at variance with both expressed Congressional intent in passing the > DMCA, and with basic Constitutional principles regarding intellectual > property protection. Nah, you're just not cynical enough. They emphasize, today, the connection between means and cryptography. After all, they have some legitimate interests in "protecting" their copyrighted works, and "encryption" is used for "protection". Once they've established the necessary precedents they'll start declaring new things (MPEG Double Plus Good comes to mind) as "effective access controls" and use their new "superpatents" as an exciting new revenue source, and to enable progressive pay-per-use models (CPSA-style systems) that take advantage of network effects (once everyone has a DVD player, you can turn up the temperature [price] slowly, and the frog won't jump...) And people wonder why there are huge disparities of income and wealth in this country. The system is rigged, my friends, and getting more rigged every day we don't reform the political process. - Ravi Nanavati From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 4 16:19:30 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA03815 for dvd-discuss-outgoing; Fri, 4 Aug 2000 16:19:30 -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 QAA03812 for ; Fri, 4 Aug 2000 16:19:29 -0400 Received: from soggy-fibers.ai.mit.edu (soggy-fibers [128.52.32.48]) by life.ai.mit.edu (8.9.3/8.9.3/AI2.13/ai.master.life:2.21) with ESMTP id QAA11203 for ; Fri, 4 Aug 2000 16:19:19 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id QAA00940; Fri, 4 Aug 2000 16:19:18 -0400 (EDT) Date: Fri, 4 Aug 2000 16:19:18 -0400 (EDT) Message-Id: <200008042019.QAA00940@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] the definition of 'Circumvention' In-Reply-To: <398B20D5.750F13C9@mit.edu> References: <5A8391CA2D9ED311AFAA080009D982B10B1DB5@mail2.onetouch.com> <398B20D5.750F13C9@mit.edu> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Ravi Nanavati writes: > We need to make the legal argument that the consumer "needs to know." > Under this model, after October, if the Panasonic player key is > revoked, and my father goes to Blockbuster and complains that new DVDs > don't play in his Panasonic player then, while old ones still work: > > 1) He has violated 1201 by "circumventing" CSS (using an implementation > no longer blessed by the DVD CCA). Hmmm... not quite. One thing the studios could say here is that the player is still authorized to play the old disks (and does), but it isn't authorized to play the new disks, and doesn't. Hence, no circumvention; it only does what they have "authorized" it to do. > 2) Proving circumvention is now open-and-shut given that he has > confessed his use of an unauthorized player to a Blockbuster > employee (who would almost certainly cooperate with the legal > actions of the MPAA's partner, the DVD CCA). What are the penalties > for violating 1201? Whatever they are, consumers should have to > be told that they need to monitor the authorization status of > their player if they want to stay on the right side of the law. See 17 USC 1203, and in particular section 1203(c)(3) on statutory damages. But I don't think a lawsuit is actually likely in this case, for the reasons outlined above. rst From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 4 16:40:36 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA04149 for dvd-discuss-outgoing; Fri, 4 Aug 2000 16:40:36 -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 QAA04146 for ; Fri, 4 Aug 2000 16:40:34 -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 QAA19399; Fri, 4 Aug 2000 16:40:23 -0400 (EDT) Message-ID: <398B2A89.7113479A@mit.edu> Date: Fri, 04 Aug 2000 16:41:45 -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] the definition of 'Circumvention' References: <5A8391CA2D9ED311AFAA080009D982B10B1DB5@mail2.onetouch.com> <398B20D5.750F13C9@mit.edu> <200008042019.QAA00940@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: > > We need to make the legal argument that the consumer "needs to know." > > Under this model, after October, if the Panasonic player key is > > revoked, and my father goes to Blockbuster and complains that new DVDs > > don't play in his Panasonic player then, while old ones still work: > > > > 1) He has violated 1201 by "circumventing" CSS (using an implementation > > no longer blessed by the DVD CCA). > > Hmmm... not quite. One thing the studios could say here is that the > player is still authorized to play the old disks (and does), but it > isn't authorized to play the new disks, and doesn't. Hence, no > circumvention; it only does what they have "authorized" it to do. Then I will say DeCSS only decrypts disks for which it was possible to reverse-engineer keys, and by placing keys on the disks the copyright owner "authorized" the use of those disks with any descrambler that could find an appropriate key --- that is what they have accomplished technologically, in any case, and the status specifies a "technical" protection measure not a thingamabob (a totally undefined concept which derives all meaning from the statute rather than an english language phrase whose interpretation is clarified by the statute, but IANAL so that may be an incorrect distinction). The point is not whether or not they consider the Panasonic player "authorized" but that, under their reading of the statute, they have as much power to declare the Panasonic player with a revoked key (or maybe even with a non-revoked key, but I don't think the argument needs to go that far to make the point) as they have to declare DeCSS unauthorized. Just as DeCSS can be declared to be performing an application without the authority of the copyright holder, so can the revoked Panasonic player. Just because they may choose, out of generosity or good public relations or on the basis of secret contracts the customer can't see or whatever else, to not make such an assertion when they revoke a player key doesn't mean they aren't arguing for the right to make that assertion. I think we need to call them on this. - Ravi Nanavati From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 4 17:02:53 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA04447 for dvd-discuss-outgoing; Fri, 4 Aug 2000 17:02:53 -0400 Received: from tbird.iworld.com ([63.236.72.237]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA04444 for ; Fri, 4 Aug 2000 17:02:51 -0400 Received: (from nobody@localhost) by tbird.iworld.com (8.10.2/8.10.2) id e74L2cu19083; Fri, 4 Aug 2000 17:02:38 -0400 Date: Fri, 4 Aug 2000 17:02:38 -0400 Message-Id: <200008042102.e74L2cu19083@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] first amendment defense Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Richard Bowers wrote: >The problem with this whole argument is that both sides are trying to prove >their points using facts that are - to them - axiomatic. Such arguments >generally end up invoking Godwin's Law at some point (as this one already >has), and are a real waste of bandwidth. Since it doesn't seem to contribute >to the defense, can it be safely dropped? > >Richard Bowers Fine by me. 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 Fri Aug 4 17:02:48 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA04440 for dvd-discuss-outgoing; Fri, 4 Aug 2000 17:02:48 -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 RAA04436 for ; Fri, 4 Aug 2000 17:02:47 -0400 Received: from localhost (galt@localhost) by inconnu.isu.edu (8.9.3/8.9.3) with ESMTP id PAA05801 for ; Fri, 4 Aug 2000 15:02:36 -0600 Date: Fri, 4 Aug 2000 15:02:36 -0600 (MDT) From: John Galt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] first amendment defense In-Reply-To: <2b.9157e61.26bc3f77@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 I'm going to call for a cite on this one. Prove it or shut up and let us get on with the task at hand. Give me an instance where the FBI has had reason to put Carnivore on the affected ISP and has not because the ISP voluntarily gave the information up. Also give me statistics on the use of Carnivore and the amount of warrants issued to run Carnivore on a target, then provide the justifications used in obtaining a few sample warrants (there's no way you could get every one: some of them are under seal). Also provide sample documentation where the FBI has ASKED to put Carnivore on an ISP's line. Failing that, shut up. On Fri, 4 Aug 2000 Consilgere@cs.com wrote: > The ISP is told they have to connect it, only if the ISP cannot supply the > information witohut it. If the ISP can supply the information Carnivore > collects, and many major ISPs can, then Carnivore is not used. Carnivore > only gets used where it's needed, with a warrant. > -- There is no problem so great that it cannot be solved with suitable application of High Explosives. Who is John Galt? galt@inconnu.isu.edu, that's who! From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 4 17:18:25 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA04828 for dvd-discuss-outgoing; Fri, 4 Aug 2000 17:18:25 -0400 Received: from thud.reric.net (sepp-host210.dsl.visi.com [209.98.241.210]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA04824 for ; Fri, 4 Aug 2000 17:18:24 -0400 Received: (from eds@localhost) by thud.reric.net (8.9.3/8.8.7) id QAA02639 for dvd-discuss@eon.law.harvard.edu; Fri, 4 Aug 2000 16:18:09 -0500 Date: Fri, 4 Aug 2000 16:18:09 -0500 From: Eric Seppanen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] the definition of 'Circumvention' Message-ID: <20000804161809.A2594@thud.reric.net> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <5A8391CA2D9ED311AFAA080009D982B10B1DB5@mail2.onetouch.com> <398B20D5.750F13C9@mit.edu> <200008042019.QAA00940@soggy-fibers.ai.mit.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1us In-Reply-To: <200008042019.QAA00940@soggy-fibers.ai.mit.edu>; from rst@ai.mit.edu on Fri, Aug 04, 2000 at 04:19:18PM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, Aug 04, 2000 at 04:19:18PM -0400, Robert S. Thau wrote: > Ravi Nanavati writes: > > We need to make the legal argument that the consumer "needs to know." > > Under this model, after October, if the Panasonic player key is > > revoked, and my father goes to Blockbuster and complains that new DVDs > > don't play in his Panasonic player then, while old ones still work: > > > > 1) He has violated 1201 by "circumventing" CSS (using an implementation > > no longer blessed by the DVD CCA). > > Hmmm... not quite. One thing the studios could say here is that the > player is still authorized to play the old disks (and does), but it > isn't authorized to play the new disks, and doesn't. Hence, no > circumvention; it only does what they have "authorized" it to do. I think it's interesting to examine how that player-key revocation actually happened. 1. Let's say that a player key gets exposed via reverse engineering. 2. Someone decides that that exposure was serious enough to revoke that key (a poor term; "stop supporting" would be more accurate)* Q: Who decides? DVD-CCA? MPAA? Individual studios? Because if it's either of the first two, it's could be argued that the copyright holder isn't doing the authorizing. How can, say, Warner Bros., be authorizing or not authorizing the viewing of The Matrix, on a particular player, when it seems likely that that task is done by a third party, likely without their knowledge? 3. Someone tells DVD-mastering companies of the revocation decision. Q: Who? Again, hints at someone other than studios doing the authorizing. 4. DVD-mastering companies stop supporting that player key when generating new key sectors. Q: Is it possible for their client to specify which keys are included? Can they, for instance, decide that a key exposure wasn't serious enough to warrant non-support on their material? If not, again, this is a pretty convincing statement that they're not the ones doing the authorizing. Although I agree with you in that that's what the studios would say, I think the key revocation scheme gives evidence that CSS may not convey the "authorization of the copyright holder" as required by 17 USC 1201. Eric * revoke is a poor term here; more accurately, revocation means, deciding not to support that player key on future DVDs. This is done by failing to place disk keys encrypted with that player key in the hidden "key sector". From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 4 17:29:54 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA05277 for dvd-discuss-outgoing; Fri, 4 Aug 2000 17:29:54 -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 RAA05274 for ; Fri, 4 Aug 2000 17:29:53 -0400 Message-ID: <20000804212912.22589.qmail@web515.mail.yahoo.com> Received: from [131.44.121.4] by web515.mail.yahoo.com; Fri, 04 Aug 2000 14:29:12 PDT Date: Fri, 4 Aug 2000 14:29:12 -0700 (PDT) From: Bryan Taylor Subject: [dvd-discuss] Admitting HTML into evidence To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-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 8th Circuit has just considered an appeal regarding admiting HTML code based on the hearsay rule. The ruling says that HTML is a "programming language which gives websites their appearance", and applied evidence rules similar to admission of photographs and recordings, when using HTML to determine what was displayed ever the internet. Actonet v. Allou Health & Beauty, 99-1855, (8th Cir. 8/1/00) http://www.ca8.uscourts.gov/opndir/00/08/991855P.pdf Does this help the interoperability arguement? __________________________________________________ Do You Yahoo!? Kick off your party with Yahoo! Invites. http://invites.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 4 18:53:51 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA08170 for dvd-discuss-outgoing; Fri, 4 Aug 2000 18:53:51 -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 SAA08167 for ; Fri, 4 Aug 2000 18:53:50 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id ; Fri, 4 Aug 2000 15:54:02 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1DBF@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] the definition of 'Circumvention' Date: Fri, 4 Aug 2000 15:54:00 -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: Chris Moseng [mailto:moseng@mninter.net] ... > Permit me a reply to myself: > > Chris Moseng wrote: > > > If the copyright holder conveys authority external to the access > > control measure, we reach the mind-bending conclusion that every CSS > > implementation succumbs to 1201(a)(2) This is fraud, copyright > > misuse, blah, blah, blah. Not to mention just plain ludicrous. > > And the point I keep forgetting to add: if the copyright > holder has the > right to convey authority external to the access control measure, any > and every "unauthorized" process succumbs to 1201(a)(2). Only applications of the "technical protection measure". >I did not > authorize you to open that book. I do not believe that a book cover qualifies as a technical protection measure. If it is my diary, which has a lock on the cover (but is very easy to pick), then yes. >You were not authorized to > ROT-13 that > email. ROT-13 would qualify as a technical protection measure (assuming again that a TPM does -not- require an affirmative authorization check but can be merely encryption) so yes. Decrypting it w/o authorization would be a violation of 1201. Now here is an interesting case. In another thread people were hypothesizing about prodigies who could perform decryption in their heads. ROT-13 is an encryption method that is simple enough that PEOPLE CAN ACTUALLY DO THIS -- read ROT-13 encrypted messages directly. Now ... what were the consequences of this? Are their heads now prohibited "circumvention devices" or what? >Sure you just typed in http://www.georgebush.com and learned of > our campaign strategy, but we didn't authorize that http > request. Kindly > cease and disist your use of that browser. HTTP is not a TPM, it is a format intended for publication. Now if the URL was for a CGI script requiring a password ... > > It's a flawed reading. It's a flawed law. >In this reading, the access control measure > doesn't. Yes ... but the law does not require that the technicalogical protection measure actually perform any test in order to qualify as a TPM. It only states that that it needs to be applied "in the ordinary course of events" and that that application is with the blessing of the copyright holder. Yes a "reasonable man" would -assume- that, in order to be a TPM, an actual check must be made ... but the law does not require this. >If it were an accurate reading, why bother with the > pretense of > encryption, and fight instead against unauthorized MPEG-2 decoding? Because MPEG-2 is a standard for encoding images, not encrypting (although the results look similar to the layman) and I don't think they could pawn it off as a TPM. They could, however, have used ROT-13. Simple as it is, it's -intention- is to disguise the content. The -intention- of MPEG-2 is merely to record but not disguise so it would have been difficult to get the court to accept that it was intended as an access control mechanism. So basically the answer is "selling it to the courts" more than anything else. Well ... that, and they couldn't establish exclusive licensing for MPEG-2 they way they could w/ CSS (the licensing, remember, is more to control the player manufacturers than the end users). > Because even the plaintiffs know that circumvention means tricking or > breaking CSS, not implementing it against their wishes. Where do they acknowledge this? I'm pretty sure that they directly said that they belive that implementations that they did not authorize were circumventing. > > I think that agreeing with the plaintiffs that DeCSS > circumvents in the > hopes of having the law overturned sounds risky. I don't agree with the plaintiffs. I do, however, think that -Kaplan- does, so we must prepare for that. >If the plaintiffs > reading is found askew, then all of our arguments for ruling 1201 > unconstitutional would be worthless. We don't know when authority is > conveyed, we can't use it as the keystone in a constitutionality > defense. Rather than hanging our hats on the plaintiff's > sketchy idea of > 1201, shouldn't we assert one of our own? Unfortunately I believe that the plaintiff's reading of the law is not completely unsupportable. Insufferable and just plain -bad- ... but a legitimate reading of the law as written. > > Maybe I'm a few steps behind Richard. I'm not willing to > commit, yet, to > an attack based on the plaintiffs position until I've read it > next week. > I'm not comfortable guessing at it. > > Thank goodness we're not the actual defense team. You and me both! ;-) -- -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 Aug 4 18:54:48 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA08427 for dvd-discuss-outgoing; Fri, 4 Aug 2000 18:54:48 -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 SAA08424 for ; Fri, 4 Aug 2000 18:54:47 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id ; Fri, 4 Aug 2000 15:54:59 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1DC0@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] the definition of 'Circumvention' Date: Fri, 4 Aug 2000 15:54:58 -0700 MIME-Version: 1.0 X-Mailer: Internet Mail Service (5.5.2650.21) Content-Type: text/plain; charset="iso-8859-1" Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > -----Original Message----- > From: Pete Broule [mailto:pbroule@yahoo.com] > Sent: Friday, August 04, 2000 12:28 PM > To: dvd-discuss@eon.law.harvard.edu > Subject: RE: [dvd-discuss] the definition of 'Circumvention' > > > > The thing is that it the law does not require that the > > technological measure requires the presence of authority. > > It only requires that the -application- of the measure > > be made "with authority". > > First off, I take it you interpret "with the authority of the > copyright > owner" as modifying "the application." Let's take it from here. > The law says "... the measure ... requires application ..., with the > authority of the copyright owner, to gain access to the work." > We could rewrite this as "... the measure ... requires ... the > authorized [by the copyright owner] application ..., to gain access to > the work." The measure must require _authorized_ application. > If the measure doesn't care whether the application is authorized > or not, it follows that it does not require authorized application. > (Assuming that unauthorized application is at all possible, > of course.) > > You completely lost me on this 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 Fri Aug 4 18:58:05 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA08578 for dvd-discuss-outgoing; Fri, 4 Aug 2000 18:58:05 -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 SAA08575 for ; Fri, 4 Aug 2000 18:58:04 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id ; Fri, 4 Aug 2000 15:58:16 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1DC1@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] the definition of 'Circumvention' Date: Fri, 4 Aug 2000 15:58:15 -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: Ravi Nanavati [mailto:ravi_n@mit.edu] > Sent: Friday, August 04, 2000 1:00 PM > To: dvd-discuss@eon.law.harvard.edu > Subject: Re: [dvd-discuss] the definition of 'Circumvention' > > > Richard Hartman wrote: > > > > > This is because either the authority to access is > conveyed within > > > > > the CSS system, > > > > > > > No. > > > > > > Only the plaintiffs have this knowledge. > > > > So? It's on a "need to know" basis and apparently John Q. Public > > does not "need to know". The court seems to have accepted it so > > we must deal with it. > > We need to make the legal argument that the consumer "needs to know." Unfortunately the testimony has been concluded and we are just waiting for Judge K to decide the issue ... or are there still phases to this thing (the trial) that I don't understand? > Under this model, after October, if the Panasonic player key is > revoked, and my father goes to Blockbuster and complains that > new DVDs > don't play in his Panasonic player then, while old ones still work: > > 1) He has violated 1201 by "circumventing" CSS (using an > implementation > no longer blessed by the DVD CCA). Yes. > 2) Proving circumvention is now open-and-shut given that he has > confessed his use of an unauthorized player to a Blockbuster > employee (who would almost certainly cooperate with the legal > actions of the MPAA's partner, the DVD CCA). What are the penalties > for violating 1201? Whatever they are, consumers should have to > be told that they need to monitor the authorization status of > their player if they want to stay on the right side of the law. > Yes. They should. For that matter the whole issue is revoking the player key also raises "bad faith" issues on the part of the player dealers & perhaps the MPAA. There are all sorts of issues raised by this model -- and especially by the secrecy behind the transfer of authority. You'll get no argument from me on that score. -- -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 Aug 4 19:03:19 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA08649 for dvd-discuss-outgoing; Fri, 4 Aug 2000 19:03:19 -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 TAA08646 for ; Fri, 4 Aug 2000 19:03:18 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id ; Fri, 4 Aug 2000 16:03:30 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1DC2@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] the definition of 'Circumvention' Date: Fri, 4 Aug 2000 16:03:29 -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: Ravi Nanavati [mailto:ravi_n@mit.edu] > Sent: Friday, August 04, 2000 1:42 PM > To: dvd-discuss@eon.law.harvard.edu > Subject: Re: [dvd-discuss] the definition of 'Circumvention' > > > "Robert S. Thau" wrote: > > > > Ravi Nanavati writes: > > > We need to make the legal argument that the consumer > "needs to know." > > > Under this model, after October, if the Panasonic player key is > > > revoked, and my father goes to Blockbuster and complains > that new DVDs > > > don't play in his Panasonic player then, while old ones > still work: > > > > > > 1) He has violated 1201 by "circumventing" CSS (using an > implementation > > > no longer blessed by the DVD CCA). > > > > Hmmm... not quite. One thing the studios could say here is that the > > player is still authorized to play the old disks (and does), but it > > isn't authorized to play the new disks, and doesn't. Hence, no > > circumvention; it only does what they have "authorized" it to do. > > Then I will say DeCSS only decrypts disks for which it was possible > to reverse-engineer keys, and by placing keys on the disks the > copyright owner "authorized" the use of those disks with any > descrambler that could find an appropriate key You can say that ... but they are saying that they must authorize the descrambler itself, and they haven't. The key on the disk enables access, but does not denote authority. > > The point is not whether or not they consider the Panasonic > player "authorized" but that, under their reading of the > statute, they have as much power to declare the Panasonic > player with a revoked key (or maybe even with a non-revoked > key, but I don't think the argument needs to go that far to > make the point) as they have to declare DeCSS unauthorized. Yes, they do. > Just as DeCSS can be declared to be performing an application > without the authority of the copyright holder, so can the > revoked Panasonic player. Yes, it can. >Just because they may choose, out of > generosity or good public relations or on the basis of secret > contracts the customer can't see or whatever else, to not make > such an assertion when they revoke a player key doesn't mean > they aren't arguing for the right to make that assertion. Correct. > I think we need to call them on this. > Correct. -- -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 Aug 4 20:01:41 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA09093 for dvd-discuss-outgoing; Fri, 4 Aug 2000 20:01:41 -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 UAA09090 for ; Fri, 4 Aug 2000 20:01:40 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id ; Fri, 4 Aug 2000 17:01:51 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1DC3@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] the definition of 'Circumvention' Date: Fri, 4 Aug 2000 17:01:50 -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: Robert S. Thau [mailto:rst@ai.mit.edu] > Sent: Friday, August 04, 2000 12:15 PM > To: dvd-discuss@eon.law.harvard.edu > Subject: RE: [dvd-discuss] the definition of 'Circumvention' > > > Richard Hartman writes: > > > If, on the other hand, this wording means that the > *technical measure* > > > must check that the *viewer* has the authority of the > copyright owner > > > to view the *particular work*, then I believe most of > those problems > > > go away. > > > > I would certainly be behind that reading, but I can not see it. > > There are no requirements that the "technical measure" perform > > any checks -- only that it require the application of a process > > to provide access to the work, and that said application > is authorized. > > That the check for authorization be part of the process is not > > required. > > Look, if you're saying it's bad English, and ambiguous, I can see > that. Yes, it is ambiguous. That makes it more than just bad English though, it makes it bad law. >But I'll remind you that the first reading of David Carson, of > the copyright office, and of Ingo Molnar, a pretty bright software > developer, both were exactly as I have it. So it certainly strikes me > as a possible, plausible reading of the law. They were reasonable men ;-) A reasonable man would assume that a check must be made in order to be considered an access control mechanism. Unfortunately the law does not require this. > > There's a pretty detailed parse of the law's phraseology, originally > from Bryan's essay, in my own LOC submission, which may be germane: > > So, ``effectively control access'' is defined in terms of ``gain > access to the work'' --- which is not, itself, defined in the DMCA. > Seeking definitions from common language, we find that any common > dictionary (e.g., Merriam-Webster) defines three senses for the word > ``access'': it can refer to a right, a means, or an act. > > The most straightforward interpretation, in context, is that the > technological measure must govern the {\em act} of access --- that is, > it must, ``in the ordinary course of its operation'', perform some > explicit test that the user is authorized by the copyright owner to > view a particular work, and allow the act of viewing the work only in > case that he is, in fact, authorized. It governs access to the work by virtue of the fact that the work as distributed is not in a usable form (it is encrypted). Application of the process (decryption) converts it to a usable form. This is sufficient to govern access to the work. Before encryption the work is not "accessable", after encryption it is. The requirement that a positive authorization check should be made before performing this conversion is desirable, and to a "reasonable man" perhaps it is assumed. But it is not there in the law. The law requires a process. Decryption (sans check) is sufficient. The law requires authorization to apply the process. Authorization can be conveyed by means of contract, or verbally, or any other number of ways. That this authorization be represented and/or verified in the process is -not- required by the law. Therfore, if you decrypt and Jack Valenti says "I didn't authorize that", you are circumventing. According to the law, at least. > But, there are other possible readings; let us consider them. > Clearly, it makes no sense to adopt the sense of ``access'' in which > to ``gain access'' is to be granted the legal right to view something. No, we are assuming that you do have the legal right to make use of the work. Perhaps by virtue of a "fair use" exception. This says "you may eat the apple". But if do not have the right to apply the process required to convert the work to a usable form, then that first right is rendered meaningless. "You may eat the apple, but you may not open the refrigerator that the apple is in". We agree then, that "access" is not meant in the sense of being granted the right because we are taking it as a given that you already have that right and are merely attempting to excercise it. > This leaves the interpretation in which ``access'' is a means, and the > technical measure checks whether the viewer is using authorized means > of acccessing the work. Again, nothing ever said that the technical measure must perform a check! If it did, then we would be ok. >However, the technical measure itself is > necessarily part of the means of access, so at the very least this > reading lends a strange circularity to 1201(a)(3)(B). But > nevertheless, as we shall see, that is the plaintiffs' reading. Are you sure? It seems that the first reading is more in keeping with the interpretation, as long as you recognize that no check is required of the "protection mechanism" by the law. > (Strangely, they seem to think this control extends over only means > which employ cryptography in some way, even though the definition of > ``effective access control'' never mentions cryptography, encryption, > or decryption; of that, more anon). Dear lord, let them never consider that processes other than encryption might be covered by this law! >We will also see that this is how > CSS itself is designed to function --- it does not and cannot check > that the user has been authorized by the copyright owner to perform > the act of access --- Correct. But the law only requires that the application of the process (presumably by the user) be authorized. Not that the process actually verify this authorization. Again, a "reasonable man" standard might lead to this implicit conclusion ... but does the "reasonable man" standard still hold these days? If so, then we have reason to challenge CSS on the grounds that it does not in fact qualify as a "technological protection measure" by virtue of the fact that it performs no such checks. >and we shall show see that this interpretation > is at variance with both expressed Congressional intent in passing the > DMCA, and with basic Constitutional principles regarding intellectual > property protection. I think that we are all agreed that any of the readings we are discussing are in conflict with the congressional intent (among other things). -- -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 Aug 4 20:31:15 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA09799 for dvd-discuss-outgoing; Fri, 4 Aug 2000 20:31:15 -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 UAA09796 for ; Fri, 4 Aug 2000 20:31:04 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id UAA23901 for dvd-discuss@eon.law.harvard.edu; Fri, 4 Aug 2000 20:35:59 -0400 Date: Fri, 4 Aug 2000 20:35:54 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] the definition of 'Circumvention' Message-ID: <20000804203553.D23349@eldritchpress.org> References: <5A8391CA2D9ED311AFAA080009D982B10B1DB5@mail2.onetouch.com> <398B20D5.750F13C9@mit.edu> <200008042019.QAA00940@soggy-fibers.ai.mit.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <200008042019.QAA00940@soggy-fibers.ai.mit.edu>; from rst@ai.mit.edu on Fri, Aug 04, 2000 at 04:19:18PM -0400 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, Aug 04, 2000 at 04:19:18PM -0400, Robert S. Thau wrote: > Ravi Nanavati writes: > > We need to make the legal argument that the consumer "needs to know." > > Under this model, after October, if the Panasonic player key is > > revoked, and my father goes to Blockbuster and complains that new DVDs > > don't play in his Panasonic player then, while old ones still work: > > > > 1) He has violated 1201 by "circumventing" CSS (using an implementation > > no longer blessed by the DVD CCA). > > Hmmm... not quite. One thing the studios could say here is that the > player is still authorized to play the old disks (and does), but it > isn't authorized to play the new disks, and doesn't. Hence, no > circumvention; it only does what they have "authorized" it to do. But then would it not be, on your argument, the responsibility of DVD-CCA to sue Panasonic (or Xing, or MoPE) for "trafficking" in some "circumventing" technology? Because that is their authorization model, up or down. Suppose Panasonic decides to issue its own DVDs with its own content and keys, and makes a side agreement with Toshiba for Toshiba to keep making players with keys that work on all Panasonic players, and with Warner to keep issuing discs with keys that work with Panasonic? Or FSF decides to issue its own DVDs under the GPL with authorization from the copyright content owner to use DeCSS? It's not really the user as they see it but the control over players. So if they go to court to enforce their contract or license then they have to reveal exactly what it says. And whatever it says will have little to do with copyright or this copyright law case. No, I don't think this is realistic. It's just another thought experiment to see if we have figured out all the extreme possibilities. -- "Eric" Eric Eldred Eldritch Press mailto:Eldred@EldritchPress.org http://www.eldritchpress.org/EricEldred.vcf From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 4 21:08:47 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA11204 for dvd-discuss-outgoing; Fri, 4 Aug 2000 21:08:47 -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 VAA11201 for ; Fri, 4 Aug 2000 21:08:36 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id VAA23950 for dvd-discuss@eon.law.harvard.edu; Fri, 4 Aug 2000 21:13:34 -0400 Date: Fri, 4 Aug 2000 21:13:29 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] the definition of 'Circumvention' Message-ID: <20000804211329.F23349@eldritchpress.org> References: <5A8391CA2D9ED311AFAA080009D982B10B1DBC@mail2.onetouch.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <5A8391CA2D9ED311AFAA080009D982B10B1DBC@mail2.onetouch.com>; from hartman@onetouch.com on Fri, Aug 04, 2000 at 12:30:17PM -0700 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, Aug 04, 2000 at 12:30:17PM -0700, Richard Hartman wrote: >.... > Thanks, Eric. Now ... where does this go from here? One can only hope that the lawyers reading all this have not been hopelessly confused! It's their job to turn it into a brief that Judge Kaplan can read. So if anybody needs any help with that, please get in touch directly with any of us and I am sure we will all try to do the best we can. As far as I am concerned, I think the latest paper by Robert and Bryan is fine, though I would like to put a reference to Vault v Quaid in the footnotes if it isn't there yet. Wendy, can I say how great an experience this OpenLaw process can be? I'm sure we all learned a great amount and felt we were contributing something serious and important, and we all benefitted from the dialogue with the great minds here. Keep it up! -- "Eric" Eric Eldred Eldritch Press mailto:Eldred@EldritchPress.org http://www.eldritchpress.org/EricEldred.vcf From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 4 21:16:45 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA11294 for dvd-discuss-outgoing; Fri, 4 Aug 2000 21:16:45 -0400 Received: from web6405.mail.yahoo.com (web6405.mail.yahoo.com [128.11.22.153]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id VAA11291 for ; Fri, 4 Aug 2000 21:16:44 -0400 Message-ID: <20000805011634.20878.qmail@web6405.mail.yahoo.com> Received: from [24.128.190.210] by web6405.mail.yahoo.com; Fri, 04 Aug 2000 18:16:34 PDT Date: Fri, 4 Aug 2000 18:16:34 -0700 (PDT) From: Pete Broule Subject: RE: [dvd-discuss] the definition of 'Circumvention' To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-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: > > > -----Original Message----- > > From: Pete Broule [mailto:pbroule@yahoo.com] > > Sent: Friday, August 04, 2000 12:28 PM > > To: dvd-discuss@eon.law.harvard.edu > > Subject: RE: [dvd-discuss] the definition of 'Circumvention' > > > > > > > The thing is that it the law does not require that the > > > technological measure requires the presence of authority. > > > It only requires that the -application- of the measure > > > be made "with authority". > > > > First off, I take it you interpret "with the authority of the > > copyright > > owner" as modifying "the application." Let's take it from here. > > The law says "... the measure ... requires application ..., with > the > > authority of the copyright owner, to gain access to the work." > > We could rewrite this as "... the measure ... requires ... the > > authorized [by the copyright owner] application ..., to gain access > to > > the work." The measure must require _authorized_ application. > > If the measure doesn't care whether the application is authorized > > or not, it follows that it does not require authorized application. > > (Assuming that unauthorized application is at all possible, > > of course.) > > > > > > You completely lost me on this one ... > Sorry, let me try again. The law says, that the measure effectively controls access to a work if it requires "X" to gain access to the work. That "X" is "the application of information, or a process or treatment, with the authority of the copyright owner." If you want to prove that a measure qualifies as an effective access control, you need to show that it indeed requires "X." A weaker requirement is not enough. Consider this: "A good guard is one that only lets in burglars with reference letters from previous victims." According to this, a guard cannot expect to be called good if he only lets in burglars, but does not check for reference letters, or if he only lets in burglars with reference letters, but accepts reference letters from police, not just from previous victims. __________________________________________________ Do You Yahoo!? Kick off your party with Yahoo! Invites. http://invites.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 4 23:23:18 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA12124 for dvd-discuss-outgoing; Fri, 4 Aug 2000 23:23:18 -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 XAA12121 for ; Fri, 4 Aug 2000 23:23:17 -0400 From: Consilgere@cs.com Received: from Consilgere@cs.com by csimo01.mx.aol.com (mail_out_v27.12.) id x.2f.8cca8c0 (7703) for ; Fri, 4 Aug 2000 23:22:25 -0400 (EDT) Message-ID: <2f.8cca8c0.26bce271@cs.com> Date: Fri, 4 Aug 2000 23:22:25 EDT Subject: Re: [dvd-discuss] first amendment defense 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 They have a right to ask for any information they want. They don't have a right to take any information they want, unless they have a warrant. They often times do ask people to volunteer it first. From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 4 23:27:57 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA12264 for dvd-discuss-outgoing; Fri, 4 Aug 2000 23:27:57 -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 XAA12261 for ; Fri, 4 Aug 2000 23:27:56 -0400 From: Consilgere@cs.com Received: from Consilgere@cs.com by csimo01.mx.aol.com (mail_out_v27.12.) id x.17.94140d6 (7703) for ; Fri, 4 Aug 2000 23:27:11 -0400 (EDT) Message-ID: <17.94140d6.26bce38f@cs.com> Date: Fri, 4 Aug 2000 23:27:11 EDT Subject: Re: [dvd-discuss] first amendment defense 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 There is an intermediate function, I agree. But its like the intermediate function when you buy an Estes Rocket. You can't launch it immediately, you have to build it first. The rocket isn't speech... From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 4 23:28:10 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA12272 for dvd-discuss-outgoing; Fri, 4 Aug 2000 23:28:10 -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 XAA12269 for ; Fri, 4 Aug 2000 23:28:09 -0400 From: Consilgere@cs.com Received: from Consilgere@cs.com by csimo02.mx.aol.com (mail_out_v27.12.) id x.e8.81f5155 (7703) for ; Fri, 4 Aug 2000 23:27:49 -0400 (EDT) Message-ID: Date: Fri, 4 Aug 2000 23:27:49 EDT Subject: Re: [dvd-discuss] first amendment defense 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 maybe to you, tell that to a member of the Khmer Rouge. From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 4 23:32:52 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA12415 for dvd-discuss-outgoing; Fri, 4 Aug 2000 23:32:52 -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 XAA12412 for ; Fri, 4 Aug 2000 23:32:52 -0400 From: Consilgere@cs.com Received: from Consilgere@cs.com by csimo01.mx.aol.com (mail_out_v27.12.) id x.11.77322d4 (7703) for ; Fri, 4 Aug 2000 23:32:11 -0400 (EDT) Message-ID: <11.77322d4.26bce4bb@cs.com> Date: Fri, 4 Aug 2000 23:32:11 EDT Subject: Re: [dvd-discuss] first amendment defense 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 Go find the transcripts from when the head of FBI research division, and some of the Carnivore developers were interrogated by one of the House committees. It wasn't more than a month ago. From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 5 01:58:56 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id BAA13219 for dvd-discuss-outgoing; Sat, 5 Aug 2000 01:58:56 -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 BAA13216 for ; Sat, 5 Aug 2000 01:58:54 -0400 Received: from localhost (galt@localhost) by inconnu.isu.edu (8.9.3/8.9.3) with ESMTP id XAA09907 for ; Fri, 4 Aug 2000 23:58:45 -0600 Date: Fri, 4 Aug 2000 23:58:44 -0600 (MDT) From: John Galt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] first amendment defense In-Reply-To: <11.77322d4.26bce4bb@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 URL? Though I doubt the URL will do much good, as both sources you quoted are biased in favor of getting Carnivore accepted, and I'm betting that there's no hard data in the congressional testimony, since IME Congress wouldn't know hard facts if they bit them on the a$$. Try again... On Fri, 4 Aug 2000 Consilgere@cs.com wrote: > Go find the transcripts from when the head of FBI research division, and some > of the Carnivore developers were interrogated by one of the House committees. > It wasn't more than a month ago. > -- The Internet must be a medium for it is neither Rare nor Well done! John Galt From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 5 02:01:13 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id CAA13281 for dvd-discuss-outgoing; Sat, 5 Aug 2000 02:01:13 -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 CAA13278 for ; Sat, 5 Aug 2000 02:01:11 -0400 Received: from localhost (galt@localhost) by inconnu.isu.edu (8.9.3/8.9.3) with ESMTP id AAA09925 for ; Sat, 5 Aug 2000 00:01:02 -0600 Date: Sat, 5 Aug 2000 00:01:02 -0600 (MDT) From: John Galt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] first amendment defense In-Reply-To: <2f.8cca8c0.26bce271@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 Didn't I issue a cite call on this one? Provide a citation or provide silence. On Fri, 4 Aug 2000 Consilgere@cs.com wrote: > They have a right to ask for any information they want. They don't have a > right to take any information they want, unless they have a warrant. They > often times do ask people to volunteer it first. > -- The Internet must be a medium for it is neither Rare nor Well done! John Galt From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 5 02:19:40 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id CAA13455 for dvd-discuss-outgoing; Sat, 5 Aug 2000 02:19:40 -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 CAA13452 for ; Sat, 5 Aug 2000 02:19:39 -0400 Message-ID: <20000805061900.20086.qmail@web512.mail.yahoo.com> Received: from [64.81.25.36] by web512.mail.yahoo.com; Fri, 04 Aug 2000 23:19:00 PDT Date: Fri, 4 Aug 2000 23:19:00 -0700 (PDT) From: Bryan Taylor Subject: RE: [dvd-discuss] My personal submission to the Copyright Office To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-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: > Hmmm... the RFC is for sections 109 and 117 while > my comments are primarily on 1201 ... does that mean > that I shouldn't submit them here? The do ask in a > specific question about the effects of "the enactment > of prohibitions on circumvention of technological > protection measures" ... Advice? Well, it's a little late to give advice now, but the RFC is for the effect of the DMCA's interaction with 109 and 117. __________________________________________________ Do You Yahoo!? Kick off your party with Yahoo! Invites. http://invites.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 5 04:48:35 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id EAA13761 for dvd-discuss-outgoing; Sat, 5 Aug 2000 04:48:35 -0400 Received: from hotmail.com (f221.law9.hotmail.com [64.4.9.221]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id EAA13758 for ; Sat, 5 Aug 2000 04:48:32 -0400 Received: (qmail 40066 invoked by uid 0); 5 Aug 2000 08:47:53 -0000 Message-ID: <20000805084753.40065.qmail@hotmail.com> Received: from 38.30.235.178 by www.hotmail.com with HTTP; Sat, 05 Aug 2000 01:47:53 PDT X-Originating-IP: [38.30.235.178] From: "Harold Eaton" To: dvd-discuss@eon.law.harvard.edu Subject: RE: [dvd-discuss] the definition of 'Circumvention' Date: Sat, 05 Aug 2000 04:47:53 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 Richard Hartman writes: >Granted. But it is an implementation created "without the >authority of the copyright owner", and therein lies the issue. >Going into the technical details of the implementation such >as title keys is irrelevant beyond this point. One last attempt to beat this dead horse: 1201 (a) (3) (B) says: "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." Now let's make some substitions in order to make this a bit easier: "technological measure" = TPM "effectively controls access to a work" = qualifies "in the ordinary course of its operation" = "" "the application of information, or a process or a treatment" = X "the authority of the copyright owner" = Y "gain access to the work" = watch a movie I hope you can agree to these substitutions. With them we can write: A TPM qualifies if it REQUIRES X with Y to watch a movie. Now here comes the hard part, the word "with" is quite a tricky word with many meanings. I think that the way it is used in the statute it is most reasonable to accept definition 5a in my Webster's dictionary: "with: 5a used as a function word to indicate combination, accompaniment, presence, or addition " let me suggest another combination word that is weaker than "with" as a substitution: "with" = and this changes the meaning slightly, allowing some things to sneak in that previously would have been excluded, but, I belive, retaining everything that worked with the word "with." Some examples: peanut butter with jelly <> peanut butter and jelly. (no longer implies mixing) maxipad with wings <> maxipad and wings. (perhaps the wings are no longer attached) key with authority <> key and authority. (the conveyance of authority may have shifted) Note that the last example is actually a gift to your view point, allowing the authority to not be tightly bound with the key, but it still won't help you... Now we have: A TPM qualifies if it REQUIRES X AND Y to watch a movie. I hope you can see that if a TPM lets you watch a movie with X but not Y, it doesn't qualify. CSS doesn't qualify unless the authority is in the title key. The technology does not REQUIRE Y to watch a movie otherwise. Let's give an example: A player manufacturer signs an agreement with the DVD-CCA, gets a license, player key and whatever else may be provided to a licensee. They go on to produce DVD players that technologically meet all of the conditions in the license agreement. The problem is that their check bounces, but this was not discovered until an accountant noticed it 9 months later. Meanwhile the players have been selling and consumers have bought them. The players have been granting access to these consumers all this time USING THE CSS TECHNOLOGY (admitted by the MPAA to BE the TPM). Then the company goes bankrupt, the MPAA takes out a full page add in the NY times stating that those players are unauthorized (actually, they'd more likely get the customer list and call the cops!). But no matter, the technology never denied anyone the ability to watch the movie, because the technology didn't require authority, unless that authority is embodied in the title key. In that case the MPAA is acting improperly. My point is that if CSS qualifies, then DeCSS is an implementation and doesn't circumvent, otherwise CSS doesn't qualify as a TPM. Now what's wrong with my reasoning? ________________________________________________________________________ Get Your Private, Free E-mail from MSN Hotmail at http://www.hotmail.com From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 5 05:23:48 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id FAA14023 for dvd-discuss-outgoing; Sat, 5 Aug 2000 05:23:48 -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 FAA14020 for ; Sat, 5 Aug 2000 05:23:46 -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 EAA26549 for ; Sat, 5 Aug 2000 04:23:16 -0500 Message-ID: <398BDE18.B3799CED@mninter.net> Date: Sat, 05 Aug 2000 04:27:52 -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: Re: [dvd-discuss] the definition of 'Circumvention' References: <5A8391CA2D9ED311AFAA080009D982B10B1DBF@mail2.onetouch.com> Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Richard Hartman wrote: > I do not believe that a book cover qualifies as a technical > protection measure. If it is my diary, which has a lock > on the cover (but is very easy to pick), then yes. Well, I'm not sure I see how opening a book (process) without the authority of the copyright owner is any different than implementing CSS (process) without the authority of the copyright owner is any different in your reading. As you've said, the encryption doesn't have anything to do with authority, just access. Like a book cover. > HTTP is not a TPM, it is a format intended for publication. > Now if the URL was for a CGI script requiring a password ... See above. > Unfortunately I believe that the plaintiff's reading of > the law is not completely unsupportable. Insufferable > and just plain -bad- ... but a legitimate reading of > the law as written. And here, I think, is the crux of our disagreement. You think that the plaintiff's reading of the law is set in stone and somehow supportable. I disagree. August 8th is the deadline for legal briefs in this case. NOW is when the defense can assert an interpretation of the law that makes sense with the evidence presented in the trial. The plaintiffs will assert theirs, and we will assert ours. If authority is not in evidence in the trial, then there is nothing stopping us from asserting the law as it was meant: allowing implementations without industry vetting. Access control measures that assess authority. There is certainly no evidence that DeCSS is not an implementation, so if this is asserted as a legal argument and ultimately affirmed, the plaintiffs have failed to meet their burden of proof otherwise. This is a 1201 defense to a 1201 charge. On the other hand, if we miss the clear opportunity to assert the position that DeCSS is legal, even under 1201, we're tossing away a winning hand. Particularly if 1201 is ultimately upheld. If it isn't made clear why DeCSS should be allowed, it will be a challenge to overturn 1201 just because it outlawed one program with no 1201 defense on record! So I guess we see the role of this phase of the trial differently. I see the question of implementation under 1201 one of law, not of fact; and the time to pursue the issue is at hand, not past. We don't NEED authority to be well defined by the plaintiffs, we are in a position to assert that 1201 defines it for them and they have to like it or lump it. The constitutional and rational reading trumps the unconstitutional and irrational one. Implementations must be found legal or the judge will damn the entire law for its implications. Explain that to him, and he will be hard pressed to find for the plaintiffs. Kaplan wants 1201 to survive his brush with it, even if it means narrowing its scope. He wants to be right, not overturned. -- moseng@mninter.net I use PGP 6.5.3 -- http://www.underwhelm.org/pgp From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 5 05:27:49 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id FAA14123 for dvd-discuss-outgoing; Sat, 5 Aug 2000 05:27:49 -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 FAA14120 for ; Sat, 5 Aug 2000 05:27:48 -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 EAA26673 for ; Sat, 5 Aug 2000 04:27:18 -0500 Message-ID: <398BDF09.261C4540@mninter.net> Date: Sat, 05 Aug 2000 04:31:53 -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] DeCSS: No title keys, no describing, no (a)(2) 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 Leland Ray wrote: > No, when Dad says "you can drive the car in xxx nights, and you > take the copy of the keys, that is a contract, and you have > agreed to it, and the keys are the consideration. > > The rest of your argument is correct -- a creative work > protected by copyright is not a physical object and thus > the creator only has few rights after transfer of physical > possession. Oral agreements granted, though since we are talking about a minor as Richard pointed out, all bets are off. Me and the kid are probably both going to Sing Sing if he smuggles cocaine across the border in it. -- moseng@mninter.net I use PGP 6.5.3 -- http://www.underwhelm.org/pgp From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 5 08:51:26 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id IAA15833 for dvd-discuss-outgoing; Sat, 5 Aug 2000 08:51:26 -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 IAA15830 for ; Sat, 5 Aug 2000 08:51:24 -0400 Received: from travel-net.com (trj37.travel-net.com [207.176.160.37]) by mail.travel-net.com (8.9.3/8.9.3) with ESMTP id HAA11120 for ; Sat, 5 Aug 2000 07:50:14 -0400 Message-ID: <398C0D56.EA42B496@travel-net.com> Date: Sat, 05 Aug 2000 08:49:26 -0400 From: Dan Steinberg Organization: Synthesis X-Mailer: Mozilla 4.74 [en] (Win98; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] DeCSS: No title keys, no describing, no (a)(2) References: <398BDF09.261C4540@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: > > Leland Ray wrote: > > > No, when Dad says "you can drive the car in xxx nights, and you > > take the copy of the keys, that is a contract, and you have > > agreed to it, and the keys are the consideration. Ummmmmmmmmmmmmmmmmm this is getting waaaaaaaaaaay off-topic AFAIK, but it's Saturday morning and Im waiting for my coffee machine to reboot. So I may as well jump in. 'keys are the onsideration'????? I think not. Consideration is a major subject in contract law but to make a long story short, in this instance it would be something junior-->dad in exchange (or consideration) for the use of the car. One dollar is commonly used although there is no need for it to be monetatary or even some minimum amount. Since I believe there was a thread about this a while ago, I exit lecture mode and go in search of coffee.... > > The rest of your argument is correct -- a creative work > > protected by copyright is not a physical object and thus > > the creator only has few rights after transfer of physical > > possession. sorry I missed the original thread. transfer of phyiscal possesion of what? of the creative work? of the rights? This sentence confuses me so I would raise a modal dialog box and wait for it to be editied before agreeing with it. > > Oral agreements granted, though since we are talking about a minor as > Richard pointed out, all bets are off. Me and the kid are probably both > going to Sing Sing if he smuggles cocaine across the border in it. > -- > 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 Sat Aug 5 09:37:04 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA17734 for dvd-discuss-outgoing; Sat, 5 Aug 2000 09:37:04 -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 JAA17731 for ; Sat, 5 Aug 2000 09:37:04 -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 JAA17245; Sat, 5 Aug 2000 09:36:55 -0400 (EDT) Message-ID: <398C18C3.D9C0323A@mit.edu> Date: Sat, 05 Aug 2000 09:38:12 -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: [dvd-discuss] Authority is a legal question Content-Type: text/plain; charset=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 would like to concur with Harold Eaton's and Chris Moseng's recent messages. http://eon.law.harvard.edu/archive/dvd-discuss/msg06306.html and http://eon.law.harvard.edu/archive/dvd-discuss/msg06305.html We must explore alternative readings of 1201 that discredit the plaintiff's authority model. Kaplan, while shutting down inquiry into how authority was transferred (during Ms. King of Time Warner's testimony) , conceded that authority is a legal question and we should take advantage of that. Yes, it may not work because Kaplan bought into the plaintiff's authority model in January, but it is worth trying (if only to firm up the ground for an appeal). Conceding the authority model to get the law thrown out might work, but there is not need to put all of our eggs in that one basket. If 1201 were read to permit independent (non-approved) implementations of a technical measure (which was at least the congressional intent) it would be a much more reasonable law (maybe not perfect, and we might be happier with it thrown out all together, but just because a Hail Mary in the last seconds of the fourth quarter is more satisfying doesn't mean that it has to be the only way we try to win the game). >From what I've seen reading the laws closely and carefully is very important in cases like this. I've looked at the Ninth Circuit decision in RIAA v. Diamond and one important thing it turned on was a very careful parsing of what was and was not a "digital audio recording device". MP3 players were (counterintuitively, but legally) found to not be "digital audio recording devices" and so the RIO player could not be banned under the AHRA. I wish this case were in the Ninth Circuit, I really do. It seems like many decisions in favor of freedom have come from there. In our case, we need to (among other things) carefully parse what an "effective access control" is. I think we can make a good case that, under the law, CSS is not "effective access control" and while our reading of the law may not be a slam-dunk, deciding an MP3 player was not a "digital audio recording device" was not a slam-dunk either and it was the winning position. - Ravi Nanavati From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 5 11:09:38 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA18578 for dvd-discuss-outgoing; Sat, 5 Aug 2000 11:09:38 -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 LAA18575 for ; Sat, 5 Aug 2000 11:09:22 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id LAA24337 for dvd-discuss@eon.law.harvard.edu; Sat, 5 Aug 2000 11:14:28 -0400 Date: Sat, 5 Aug 2000 11:14:23 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] the definition of 'Circumvention' Message-ID: <20000805111423.A24030@eldritchpress.org> References: <5A8391CA2D9ED311AFAA080009D982B10B1DBF@mail2.onetouch.com> <398BDE18.B3799CED@mninter.net> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <398BDE18.B3799CED@mninter.net>; from moseng@mninter.net on Sat, Aug 05, 2000 at 04:27:52AM -0500 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sat, Aug 05, 2000 at 04:27:52AM -0500, Chris Moseng wrote: > > And here, I think, is the crux of our disagreement. You think that the > plaintiff's reading of the law is set in stone and somehow supportable. > I disagree. August 8th is the deadline for legal briefs in this case. > NOW is when the defense can assert an interpretation of the law that > makes sense with the evidence presented in the trial. The plaintiffs ^^^^^^^^^^^ > will assert theirs, and we will assert ours. >... > So I guess we see the role of this phase of the trial differently. I see > the question of implementation under 1201 one of law, not of fact; and > the time to pursue the issue is at hand, not past. We don't NEED > authority to be well defined by the plaintiffs, we are in a position to > assert that 1201 defines it for them and they have to like it or lump > it. The constitutional and rational reading trumps the unconstitutional > and irrational one. Implementations must be found legal or the judge ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^ > will damn the entire law for its implications. Explain that to him, and ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^ > he will be hard pressed to find for the plaintiffs. Kaplan wants 1201 to > survive his brush with it, even if it means narrowing its scope. He > wants to be right, not overturned. Your last statement is more correct: the defense does not need to present an interpretation of 1201 that makes sense. Since no interpretation of the law makes sense (nor is consistent with copyright law, past cases, legislative history, and the Constitution!) then Judge Kaplan ought to throw it out on any offered interpretation. Of course, you are right that the judge will try as hard as he can to make sense of the law before throwing it out. So defense needs to consider any possible interpretation. From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 5 14:45:47 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA19684 for dvd-discuss-outgoing; Sat, 5 Aug 2000 14:45:47 -0400 Received: from mail.airbridge.net ([204.147.60.220]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id OAA19681 for ; Sat, 5 Aug 2000 14:45:46 -0400 Received: from agape.murphy.cx ([166.84.198.139]) by mail.airbridge.net (Netscape Messaging Server 3.6) with ESMTP id AAA3DF1 for ; Sat, 5 Aug 2000 14:45:14 -0400 Received: (from murphy@localhost) by agape.murphy.cx (8.9.3/8.8.7) id OAA02080 for dvd-discuss@eon.law.harvard.edu; Sat, 5 Aug 2000 14:44:56 -0400 Date: Sat, 5 Aug 2000 14:44:56 -0400 From: Roy Murphy To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] DeCSS: No title keys, no descrambling, no (a)(2 ) Message-ID: <20000805144456.D1183@agape.murphy.cx> References: <5A8391CA2D9ED311AFAA080009D982B10B1DB6@mail2.onetouch.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0pre3i In-Reply-To: <5A8391CA2D9ED311AFAA080009D982B10B1DB6@mail2.onetouch.com> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Yea, verily on Fri, Aug 04, 2000 at 10:48:31AM -0700, thus spake Richard Hartman: > > From: Chris Moseng [mailto:moseng@mninter.net] > > > > You're right that it hasn't been established, but it makes sense under > > 1201, while anything else comes out as nonsense. WE can establish it. > > How? Testimony is over. Kaplan has ruled that "authority" is a matter of law, not a matter of fact. Alternative authority models can/will be addressed in the briefs. One possible argument is: "CSS is not a section 1201 TPM because it is not a process performed with the authority of the copyright holder. The authority to descrable is, by the testimony of the plaintiffs, granted by the DVD-CCA, not the copyright holder." The fact is they haven't (yet) described how their authority model conforms to section 1201. -- 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 Sat Aug 5 18:27:55 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA23244 for dvd-discuss-outgoing; Sat, 5 Aug 2000 18:27:55 -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 SAA23241 for ; Sat, 5 Aug 2000 18:27:54 -0400 Message-ID: <20000805222716.9148.qmail@web514.mail.yahoo.com> Received: from [64.81.25.36] by web514.mail.yahoo.com; Sat, 05 Aug 2000 15:27:16 PDT Date: Sat, 5 Aug 2000 15:27:16 -0700 (PDT) From: Bryan Taylor Subject: [dvd-discuss] Openlaw at Advogato To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-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.advogato.org Advogato is a community site for free software developers. It also serves as a research testbed for research on group trust metrics for peer certification. I entered Openlaw as a project at Advogato: http://www.advogato.org/proj/Openlaw/ Openlaw is not quite "software", but does promote both open development and free software, so I thought it was close enough. __________________________________________________ Do You Yahoo!? Kick off your party with Yahoo! Invites. http://invites.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 5 20:48:42 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA25689 for dvd-discuss-outgoing; Sat, 5 Aug 2000 20:48:42 -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 UAA25686 for ; Sat, 5 Aug 2000 20:48:40 -0400 Received: from naboo (user-2inib0s.dsl.mindspring.com [165.121.44.28]) by swan.prod.itd.earthlink.net (8.9.3-EL_1_3/8.9.3) with ESMTP id RAA14431 for ; Sat, 5 Aug 2000 17:48:33 -0700 (PDT) From: "Jim Taylor" To: Subject: RE: [dvd-discuss] the definition of 'Circumvention' Date: Sat, 5 Aug 2000 17:48:19 -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) Importance: Normal In-Reply-To: <39883F08.329C8FAF@mninter.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 Chris Moseng, on Wednesday, August 02, 2000 8:32 AM, wrote > >Jim Taylor wrote: > >> Ok. Is there a meaningful distinction? If a device has "purpose or >> use" to circumvent, then it can circumvent. > >Guns don't kill people; people with guns kill people. DeCSS.exe doesn't circumvent; people with DeCSS.exe and DivX;-) circumvent. Guns have uses other than killing people. Show that DeCSS.exe has uses other than circumventing and you've gotten somewhere. But don't argue that because a machine gun is just an implementation of a gun, it therefore can't be controlled or legislated differently than other guns. DeCSS is not a player. DeCSS does not protect works from being copied like licensed CSS implementations do. So it isn't authorized. So it circumvents. One can say that all CSS implementations circumvent, but authorized implementations are legally allowed to do so by the DMCA. Chris from another thread: >The plaintiffs assert DeCSS is a device that has purpose of >circumvention and that Corley trafficks it. Well, we can hardly deny the >latter, but if the device can't do the former by definition, we've won a >lawsuit. By definition? I just don't follow this "it's an implementation so it can't circumvent" argument. An implementation of what? Authorized players implement CSS for playback. DeCSS.exe implements CSS for copying files. Is that circumvention? The plaintiffs claim it is. You can't dismiss their claim on a "definition" with no clear basis. In fact, they probably claim that DeCSS in an implementation of a circumvention device. >Devices that implement CSS correctly cannot circumvent by definition. >They determine the authorization and grant it or deny it. Who says they determine or grant authorization? They are merely access control devices that attempt to limit access to authorized environments. > If there is >authority that exceeds the bounds of the CSS system, then no CSS >implementation accurately determines authority in its use and they're >all equally circumvention devices. Right, but CSS doesn't determine authority. >I encourage you to imagine this in the case of satellite pay per view: I >build a box that performs the same authorization functions as my >satellite reciever. Hmmm. Do I get to see any more movies than I can >with my old box? No. The new box is waiting for the keys just the same >way the old box would. Can you see movies without paying? If so, then you are seeing them without authorization. Or does your box also enable the cable company to bill you? If so, you're probably still not properly authorized, but they won't care since you're paying. -- Jim Taylor Author of DVD Demystified and the DVD FAQ From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 5 20:57:32 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA25815 for dvd-discuss-outgoing; Sat, 5 Aug 2000 20:57:32 -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 UAA25812 for ; Sat, 5 Aug 2000 20:57:31 -0400 Received: from naboo (user-2inib0s.dsl.mindspring.com [165.121.44.28]) by swan.prod.itd.earthlink.net (8.9.3-EL_1_3/8.9.3) with ESMTP id RAA01131 for ; Sat, 5 Aug 2000 17:57:24 -0700 (PDT) From: "Jim Taylor" To: Subject: RE: [dvd-discuss] the definition of 'Circumvention' Date: Sat, 5 Aug 2000 17:57:11 -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) 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 Wednesday, August 02, 2000 5:06 AM, wrote > >On Tue, 1 Aug 2000, Jim Taylor wrote: >> >> You could not get PGP banned, because it clearly has other uses. [...] > >no. The decryption part of PGP has a sole purpose: to decrypt an encrypted >email. So in this context, PGP's decryption part circumvents. It clearly >works for many different copyright holders, but it takes just one >copyright holder to complain under the DMCA, and PGP's decryption >functionality becomes a circumvention device. No, no, no. You can't turn something into a circumvention device! The DMCA is very clear about this. It talks about a device that is "primarily designed or produced for the purpose of circumventing." PGP was not designed for this. Using it for circumvention does not change anything. >PGP itself (the package) has other, encryption and key management >functionality as well (just as DeCSS has 'save to disk' and 'display a >messages' parts - this is even more visible in the LiViD case), but this >does not change the fact that the decryption part's only purpose is to >decrypt. DeCSS's CSS parts have one purpose: to decrypt. (obviously) No. CSS has a vital purpose other than to decrypt. That's the difference. CSS includes multiple keys, ways of hiding keys on a disc, algorithms for authentication, etc. All of this is designed to create a system with one and only one intent: protect content on DVD. Thus it gets special treatment under the DMCA. -- Jim Taylor Author of DVD Demystified and the DVD FAQ From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 5 21:09:39 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA26047 for dvd-discuss-outgoing; Sat, 5 Aug 2000 21:09:39 -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 VAA26044 for ; Sat, 5 Aug 2000 21:09:38 -0400 Received: from naboo (user-2inib0s.dsl.mindspring.com [165.121.44.28]) by swan.prod.itd.earthlink.net (8.9.3-EL_1_3/8.9.3) with ESMTP id SAA23559 for ; Sat, 5 Aug 2000 18:09:30 -0700 (PDT) From: "Jim Taylor" To: Subject: RE: [dvd-discuss] the definition of 'Circumvention' Date: Sat, 5 Aug 2000 18:09:17 -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: <20000805084753.40065.qmail@hotmail.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 Harold Eaton, on Saturday, August 05, 2000 1:48 AM, wrote >Now what's wrong with my reasoning? You cheated by changing "with" to "and." To wit... >"technological measure" = TPM >"effectively controls access to a work" = qualifies >"in the ordinary course of its operation" = "" >"the application of information, or a process or a treatment" = X >"the authority of the copyright owner" = Y >"gain access to the work" = watch a movie > >A TPM qualifies if it REQUIRES X with Y to watch a movie. > >"with" = and > >I hope you can see that if a TPM lets you watch a movie >with X but not Y, it doesn't qualify. No, because this sentence no longer accurately represents the DMCA. >CSS doesn't qualify unless the authority is in the title key. >The technology does not REQUIRE Y to watch a movie otherwise. Authority isn't in the title key. Authority is granted by the copyright holder, through the CCA, to the device. That's where "with" comes in. The device is authorized, so it does its thing with authority. >Let's give an example: > >A player manufacturer signs an agreement with the DVD-CCA, gets a >license, player key and whatever else may be provided to a licensee. >They go on to produce DVD players that technologically meet all of >the conditions in the license agreement. The problem is that their >check bounces, but this was not discovered until an accountant >noticed it 9 months later. Meanwhile the players have been selling >and consumers have bought them. The players have been granting access >to these consumers all this time USING THE CSS TECHNOLOGY (admitted >by the MPAA to BE the TPM). Then the company goes bankrupt, >the MPAA takes out a full page add in the NY times stating that >those players are unauthorized (actually, they'd more likely get >the customer list and call the cops!). But no matter, the technology >never denied anyone the ability to watch the movie, because the >technology didn't require authority, unless that authority is >embodied in the title key. In that case the MPAA is acting improperly. Indeed they are, since paying money is not what grants authority to the player. If the device was implemented according the to requirements of the CSS license, and the license was signed, then the device is authorized. They manufacturer could break into the DVD CCA offices and steal money and it still wouldn't change the status of the player. The CCA has other recourses to try to get their money, but de-authorizing a player is not one of them. >From related thread, Eric Seppanen, on Friday, August 04, 2000 2:18 PM, wrote > >2. Someone decides that that exposure was serious enough to revoke that > key (a poor term; "stop supporting" would be more accurate)* > Q: Who decides? DVD-CCA? MPAA? Individual studios? Because if it's > either of the first two, it's could be argued that the copyright > holder isn't doing the authorizing. How can, say, Warner Bros., be > authorizing or not authorizing the viewing of The Matrix, on a > particular player, when it seems likely that that task is done by a > third party, likely without their knowledge? I believe the CSS license is written such that a copyright holder has to file a formal complaint against a manufacturer. Thus this argument goes out the window. >3. Someone tells DVD-mastering companies of the revocation decision. > Q: Who? Again, hints at someone other than studios doing the > authorizing. DVD CCA tells them, but studio has requested it. -- Jim Taylor Author of DVD Demystified and the DVD FAQ From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 5 22:39:04 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA26794 for dvd-discuss-outgoing; Sat, 5 Aug 2000 22:39:04 -0400 Received: from hotmail.com (f243.law9.hotmail.com [64.4.9.243]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id WAA26791 for ; Sat, 5 Aug 2000 22:39:03 -0400 Received: (qmail 33112 invoked by uid 0); 6 Aug 2000 02:38:26 -0000 Message-ID: <20000806023826.33111.qmail@hotmail.com> Received: from 38.30.242.199 by www.hotmail.com with HTTP; Sat, 05 Aug 2000 19:38:25 PDT X-Originating-IP: [38.30.242.199] From: "Harold Eaton" To: dvd-discuss@eon.law.harvard.edu Subject: RE: [dvd-discuss] the definition of 'Circumvention' Date: Sat, 05 Aug 2000 22:38:25 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: >Harold Eaton, on Saturday, August 05, 2000 1:48 AM, wrote > > >Now what's wrong with my reasoning? > >You cheated by changing "with" to "and." To wit... Actually, this was not cheating, it was a consession! Keeping the word as "with" makes it an even stronger statement in my opinion. I have examined every single definition of "with" in my dictionary, and either it makes nonsense out of the sentence, or BOTH authority and processess are REQUIRED to grant access. CSS TECHNOLOGY doesn't require authority (unless its in the title key). Maybe you're just renaming CSS something else when it doesn't have authority? Suppose instead of taking money when breaking in to the DVD-CCA, they steal the CSS technology instead and used it. (Perhaps there was a complete chipset implementing CSS) Now there is no contract, so there is no authority, and guess what - it gives access to works! I believe you are bending the words "technological measure" well past the breaking point by including contracts (and their terms) as "techonology". That's nonsense. ________________________________________________________________________ Get Your Private, Free E-mail from MSN Hotmail at http://www.hotmail.com From dvd-discuss-owner@eon.law.harvard.edu Sun Aug 6 00:19:10 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA30727 for dvd-discuss-outgoing; Sun, 6 Aug 2000 00:19:10 -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 AAA30724 for ; Sun, 6 Aug 2000 00:19:08 -0400 From: Consilgere@cs.com Received: from Consilgere@cs.com by csimo02.mx.aol.com (mail_out_v27.12.) id x.e6.929e3de (8391) for ; Sun, 6 Aug 2000 00:18:27 -0400 (EDT) Message-ID: Date: Sun, 6 Aug 2000 00:18:26 EDT Subject: Re: [dvd-discuss] first amendment defense 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 http://www.zdnet.com/zdnn/stories/news/0,4586,2601502,00.html That's a story that tells who was in front of the committee, and gives generalities as to the stats your looking for. Anything more, you or I are gonna have to find a record of the committee's meeting. From dvd-discuss-owner@eon.law.harvard.edu Sun Aug 6 00:26:08 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA30881 for dvd-discuss-outgoing; Sun, 6 Aug 2000 00:26:08 -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 AAA30878 for ; Sun, 6 Aug 2000 00:26:07 -0400 From: Consilgere@cs.com Received: from Consilgere@cs.com by csimo02.mx.aol.com (mail_out_v27.12.) id x.25.91d4079 (8391) for ; Sun, 6 Aug 2000 00:25:25 -0400 (EDT) Message-ID: <25.91d4079.26be42b5@cs.com> Date: Sun, 6 Aug 2000 00:25:25 EDT Subject: Re: [dvd-discuss] first amendment defense 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 http://www.house.gov/judiciary/2.htm This is a cite that provides the actual testimony Im talking about. Find the July 24 hearing. From dvd-discuss-owner@eon.law.harvard.edu Sun Aug 6 01:32:10 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id BAA00977 for dvd-discuss-outgoing; Sun, 6 Aug 2000 01:32:10 -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 BAA00974 for ; Sun, 6 Aug 2000 01:32:05 -0400 Received: from naboo (user-2inib0s.dsl.mindspring.com [165.121.44.28]) by swan.prod.itd.earthlink.net (8.9.3-EL_1_3/8.9.3) with ESMTP id WAA02616 for ; Sat, 5 Aug 2000 22:31:57 -0700 (PDT) From: "Jim Taylor" To: Subject: RE: [dvd-discuss] We've proved Reverse Engineering Date: Sat, 5 Aug 2000 22:31:35 -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: <20000726152741.B12807@eldritchpress.org> 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 Wednesday, July 26, 2000 12:28 PM, wrote > > >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 don't think so. Why would they be upset about a device that (if all the righteous claims of "this is only to play legitimate DVDs on Linux" are true) will lead to more sales of their discs? They fear one thing: copies of their movies being distributed without them being paid. If LiViD makes this easier, then they won't like it. If LiViD actually took steps to protect DVD content from being copied, you'd probably not hear a peep from the MPAA. I doubt even the DVD CCA would be terribly upset about missing out on a license fee or two. -- Jim Taylor Author of DVD Demystified and the DVD FAQ From dvd-discuss-owner@eon.law.harvard.edu Sun Aug 6 02:20:21 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id CAA01276 for dvd-discuss-outgoing; Sun, 6 Aug 2000 02:20:21 -0400 Received: from mail.inka.de (mail@quechua.inka.de [212.227.14.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id CAA01273 for ; Sun, 6 Aug 2000 02:20:19 -0400 Received: from sites.inka.de (puric.inka.de [212.227.14.17]) by mail.inka.de with esmtp id 13LJnA-0006lx-00; Sun, 6 Aug 2000 08:20:12 +0200 Received: from localhost by sites.inka.de with local id 13LJnC-00053Z-00; Sun, 6 Aug 2000 08:20:14 +0200 Date: Sun, 6 Aug 2000 08:20:14 +0200 From: Sham Gardner To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] We've proved Reverse Engineering Message-ID: <20000806082014.B18610@inka.de> References: <20000726152741.B12807@eldritchpress.org> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0i In-Reply-To: ; from jtfrog@usa.net on Sat, Aug 05, 2000 at 10:31:35PM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sat, Aug 05, 2000 at 10:31:35PM -0700, Jim Taylor wrote: > I don't think so. Why would they be upset about a device that (if all the > righteous claims of "this is only to play legitimate DVDs on Linux" are > true) will lead to more sales of their discs? I don't know, but I don't know how much control of the player market is worth to them. > They fear one thing: copies of > their movies being distributed without them being paid. However as even Judge Kaplan has now acknowledged, nothing they can do in the courtroom will prevent that, even if DeCSS were the only way possible to copy DVD content, which it isn't. And I don't think they're stupid enough not to know that. I don't claim to know why controlling the players means so much to them, but as far as I can tell it is the only logical explanation for what they are doing. Sham -- http://sites.inka.de/risctaker/DeCSS/ "The first speech censored, the first thought forbidden, the first freedom denied, chains us all irrevocably." (Jean-Luc Picard) From dvd-discuss-owner@eon.law.harvard.edu Sun Aug 6 03:12:37 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id DAA02801 for dvd-discuss-outgoing; Sun, 6 Aug 2000 03:12:37 -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 DAA02798 for ; Sun, 6 Aug 2000 03:12:35 -0400 Received: from bushing (unverified [24.219.90.179]) by lightning.i3s.net (Rockliffe SMTPRA 3.4.7) with ESMTP id for ; Sun, 6 Aug 2000 02:12:08 -0500 Received: from bushing ([127.0.0.1] helo=rice.edu ident=bbyer) by bushing with esmtp (Exim 3.12 #1 (Debian)) id 13LKZU-0000Cf-00 for ; Sun, 06 Aug 2000 02:10:08 -0500 X-Mailer: exmh version 2.1.1 10/15/1999 (debian) To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] We've proved Reverse Engineering In-Reply-To: Message from Sham Gardner of "Sun, 06 Aug 2000 08:20:14 +0200." <20000806082014.B18610@inka.de> References: <20000726152741.B12807@eldritchpress.org> <20000806082014.B18610@inka.de> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii Date: Sun, 06 Aug 2000 02:10:07 -0500 From: Ben Byer Message-Id: Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > > They fear one thing: copies of > > their movies being distributed without them being paid. > > However as even Judge Kaplan has now acknowledged, nothing they can do in the > courtroom will prevent that, even if DeCSS were the only way possible to > copy DVD content, which it isn't. And I don't think they're stupid enough > not to know that. I don't claim to know why controlling the players means so > much to them, but as far as I can tell it is the only logical explanation > for what they are doing. If Judge Kaplan rules DeCSS legal, DVD manufacturers can use its "alternate implementation" in their players, and bypass the DVDCCA and its licensing fees. Additionally, they can choose to help their players in the market by disregarding region coding, because they will no longer be contractually obligated. Thus, if DeCSS is legal * No more license fees (for at least the players) * No more region coding, and associated markup for the MPA. Ben From dvd-discuss-owner@eon.law.harvard.edu Sun Aug 6 03:38:41 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id DAA03346 for dvd-discuss-outgoing; Sun, 6 Aug 2000 03:38:41 -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 DAA03340 for ; Sun, 6 Aug 2000 03:38:40 -0400 Received: from sites.inka.de (puric.inka.de [212.227.14.17]) by mail.inka.de with esmtp id 13LL0z-0008MD-00; Sun, 6 Aug 2000 09:38:33 +0200 Received: from localhost by sites.inka.de with local id 13LL12-0005MS-00; Sun, 6 Aug 2000 09:38:36 +0200 Date: Sun, 6 Aug 2000 09:38:36 +0200 From: Sham Gardner To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] We've proved Reverse Engineering Message-ID: <20000806093835.C18610@inka.de> References: <20000726152741.B12807@eldritchpress.org> <20000806082014.B18610@inka.de> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0i In-Reply-To: ; from bbyer@rice.edu on Sun, Aug 06, 2000 at 02:10:07AM -0500 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sun, Aug 06, 2000 at 02:10:07AM -0500, Ben Byer wrote: > If Judge Kaplan rules DeCSS legal, DVD manufacturers can use its > "alternate implementation" in their players, Yes that's what I was getting at. This is the only thing that would be prevented by it being ruled illegal. Sham -- http://sites.inka.de/risctaker/DeCSS/ "The first speech censored, the first thought forbidden, the first freedom denied, chains us all irrevocably." (Jean-Luc Picard) From dvd-discuss-owner@eon.law.harvard.edu Sun Aug 6 05:15:27 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id FAA06443 for dvd-discuss-outgoing; Sun, 6 Aug 2000 05:15:27 -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 FAA06440 for ; Sun, 6 Aug 2000 05:15:26 -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 FAA06594; Sun, 6 Aug 2000 05:15:20 -0400 (EDT) Message-ID: <398D2D06.E7DC7D47@mit.edu> Date: Sun, 06 Aug 2000 05:16:54 -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] We've proved Reverse Engineering 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: > > Eric Eldred, on Wednesday, July 26, 2000 12:28 PM, wrote > > > > > >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 don't think so. Why would they be upset about a device that (if all the > righteous claims of "this is only to play legitimate DVDs on Linux" are > true) will lead to more sales of their discs? They fear one thing: copies of > their movies being distributed without them being paid. If LiViD makes this > easier, then they won't like it. If LiViD actually took steps to protect DVD > content from being copied, you'd probably not hear a peep from the MPAA. I > doubt even the DVD CCA would be terribly upset about missing out on a > license fee or two. If they fear copies of their disks being distributed so much why haven't they done anything about Power Ripper and D.O.D Speed ripper? As was pointed out in the trial, these tools are an order of magnitude easier to use the DeCSS if what you want to do is copy a DVD. Second, if their interest is in preventing copying then why is their request for the things to be banned so large? They wanted it changed, IIRC to "anything which can descramble CSS-encrypted movied that we have not approved". This, obviously, includes any DVD player that can play a CSS-encrypted movie that they do not approve of, even those that exists to "play legitimate DVDs on Linux, FreeBSD, BeOS, EROS, and lots of other OSes that are currently unpopular." Strangely enough, it would not include Speed Ripper or Power Ripper because those tools need an existing DVD player to be able to copy a movie (they use the DVD player to descramble and then copy the descrambled content). - Ravi Nanavati From dvd-discuss-owner@eon.law.harvard.edu Sun Aug 6 05:52:39 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id FAA06609 for dvd-discuss-outgoing; Sun, 6 Aug 2000 05:52:39 -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 FAA06606 for ; Sun, 6 Aug 2000 05:52:36 -0400 Received: by chiara.elte.hu (Postfix, from userid 17806) id AB6427E1B5; Sun, 6 Aug 2000 11:52:28 +0200 (CEST) Date: Sun, 6 Aug 2000 12:01:24 +0200 (CEST) From: Ingo Molnar To: dvd-discuss@eon.law.harvard.edu Subject: RE: [dvd-discuss] We've proved Reverse Engineering 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, 5 Aug 2000, Jim Taylor wrote: > >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 don't think so. Why would they be upset about a device that (if all > the righteous claims of "this is only to play legitimate DVDs on > Linux" are true) will lead to more sales of their discs? [...] well, there are CSS licensing fees. But more imporantly, with LiViD there goes the possibility for them to control use of authorized DVDs, which *is* a very lucrative business. Just compare the price of DVDs in the US and in Europe, then multiply it by the millions of DVDs sold every month. By artificially fixing prices along geographical regions and against free market rules they can sell DVDs at higher prices in places where people can afford higher prices. (and exclude legitimate import of cheaper DVDs) Microsoft does similar things and got burnt in France (french computer dealers imported the much cheaper, french canadian Windows variant - Microsoft retaliated against those dealers and got sued and it looks like Microsoft lost the case). so LiViD is indeed the real nightmare of MPAA - if LiViD is allowed by the courts then no future use-control will be possible (under the DMCA). IMHO, after-sale use-control of legitimately purchased (non-rented) digital content is much more valuable to the MPAA than CSS or DVD or anything else. But it's such an obscene concept - it's like Ford telling us which roads to use, and what direction to go. I sincerely hope the DMCA does not enable this. Ingo From dvd-discuss-owner@eon.law.harvard.edu Sun Aug 6 06:16:26 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id GAA06785 for dvd-discuss-outgoing; Sun, 6 Aug 2000 06:16:26 -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 GAA06782 for ; Sun, 6 Aug 2000 06:16:24 -0400 Received: from localhost (ssyreeni@localhost) by kruuna.Helsinki.FI (8.10.1/8.10.1) with ESMTP id e76AGGd16542 for ; Sun, 6 Aug 2000 13:16:17 +0300 (EET DST) X-Authentication-Warning: kruuna.Helsinki.FI: ssyreeni owned process doing -bs Date: Sun, 6 Aug 2000 13:16:16 +0300 (EET DST) From: Sampo A Syreeni To: dvd-discuss@eon.law.harvard.edu Subject: RE: [dvd-discuss] We've proved Reverse Engineering 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, 5 Aug 2000, Jim Taylor wrote: >I don't think so. Why would they be upset about a device that (if all the >righteous claims of "this is only to play legitimate DVDs on Linux" are >true) will lead to more sales of their discs? They fear one thing: copies of >their movies being distributed without them being paid. Do you think we should make a catalog out of the MPAA-frightening consequences of DeCSS (general sense, including LiVID)? Since it's already been shown that the Asian Pirate scenario, which should be the one to trouble the plaintiffs most, doesn't in fact have anything to do with DeCSS in any form, the precise motivation of the MPAA in all this *still* seems a bit hazy. The current notion of /control/ of the player market is sort of hazy in the sense that it isn't exactly clear what the kind of control is that the MPAA wants. Security, of course, but at what level? For instance, could it be that LiVID-sorta software could be targeted even if they try to play by the book (no export facility, etc.)? Sampo Syreeni , aka decoy, student/math/Helsinki university From dvd-discuss-owner@eon.law.harvard.edu Sun Aug 6 06:31:23 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id GAA06940 for dvd-discuss-outgoing; Sun, 6 Aug 2000 06:31:23 -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 GAA06937 for ; Sun, 6 Aug 2000 06:31:22 -0400 Received: from localhost (ssyreeni@localhost) by kruuna.Helsinki.FI (8.10.1/8.10.1) with ESMTP id e76AVFf17074 for ; Sun, 6 Aug 2000 13:31:15 +0300 (EET DST) X-Authentication-Warning: kruuna.Helsinki.FI: ssyreeni owned process doing -bs Date: Sun, 6 Aug 2000 13:31:14 +0300 (EET DST) From: Sampo A Syreeni To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] We've proved Reverse Engineering In-Reply-To: <398D2D06.E7DC7D47@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 Sun, 6 Aug 2000, Ravi Nanavati wrote: >If they fear copies of their disks being distributed so much why >haven't they done anything about Power Ripper and D.O.D Speed >ripper? As was pointed out in the trial, these tools are an >order of magnitude easier to use the DeCSS if what you want to >do is copy a DVD. I think this points to a more political cause: attacking tools which do not actually target CSS but a specific player implementation (i.e. rip from buffers) might not be as useful in establishing a legal precedent that protects CSS itself. Such a precedent might have the peripheral effect of lending some protection to the licencing scheme as well - it's pretty difficult to challenge a secret licencing policy in court if we have precedent saying that any unlicenced implementation will be a circumvention tool and hence illegal on its face. I.e., it would be about keeping 'honest' player manufacturers and movie producers honest. >Second, if their interest is in preventing >copying then why is their request for the things to be banned >so large? They wanted it changed, IIRC to "anything which can >descramble CSS-encrypted movied that we have not approved". Another speculation: how about some sort of power struggle between consumer oriented player manufacturers and control/closed market oriented movie companies? Arguably this case could strengthen MPAA members' position in such a situation. Sampo Syreeni , aka decoy, student/math/Helsinki university From dvd-discuss-owner@eon.law.harvard.edu Sun Aug 6 07:42:59 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id HAA07103 for dvd-discuss-outgoing; Sun, 6 Aug 2000 07:42:59 -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 HAA07100 for ; Sun, 6 Aug 2000 07:42:58 -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 HAA02449 for ; Sun, 6 Aug 2000 07:42:53 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id HAA08632; Sun, 6 Aug 2000 07:42:51 -0400 (EDT) Date: Sun, 6 Aug 2000 07:42:51 -0400 (EDT) Message-Id: <200008061142.HAA08632@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: RE: [dvd-discuss] We've proved Reverse Engineering In-Reply-To: References: <20000726152741.B12807@eldritchpress.org> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Jim Taylor writes: > I don't think so. Why would they be upset about a device that (if all the > righteous claims of "this is only to play legitimate DVDs on Linux" are > true) will lead to more sales of their discs? They fear one thing: copies of > their movies being distributed without them being paid. If LiViD makes this > easier, then they won't like it. If LiViD actually took steps to protect DVD > content from being copied, you'd probably not hear a peep from the MPAA. I > doubt even the DVD CCA would be terribly upset about missing out on a > license fee or two. So you don't think region coding has anything to do with it? There's a lot more revenue at stake with that than there currently is with players for DVD-drive equipped Linux-only desktops. (And other sorts of arrangements as well; there's a cute bit in the Stanford LOC transcript where Marks explains that region coding makes it *so* much easier to comply with Chinese government censorship regulations. But we've all read that by now, right?) And that's not even to mention the other use controls which their "protection architecture" may encompass in the future... rst From dvd-discuss-owner@eon.law.harvard.edu Sun Aug 6 11:03:51 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA10695 for dvd-discuss-outgoing; Sun, 6 Aug 2000 11:03:51 -0400 Received: from hotmail.com (f221.law9.hotmail.com [64.4.9.221]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id LAA10692 for ; Sun, 6 Aug 2000 11:03:49 -0400 Received: (qmail 40289 invoked by uid 0); 6 Aug 2000 15:03:13 -0000 Message-ID: <20000806150313.40288.qmail@hotmail.com> Received: from 38.30.238.172 by www.hotmail.com with HTTP; Sun, 06 Aug 2000 08:03:13 PDT X-Originating-IP: [38.30.238.172] From: "Harold Eaton" To: dvd-discuss@eon.law.harvard.edu Subject: RE: [dvd-discuss] We've proved Reverse Engineering Date: Sun, 06 Aug 2000 11:03:13 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 don't think so. Why would they be upset about a device that (if all the >righteous claims of "this is only to play legitimate DVDs on Linux" are >true) will lead to more sales of their discs? They fear one thing: copies >of >their movies being distributed without them being paid. If LiViD makes this >easier, then they won't like it. If LiViD actually took steps to protect >DVD >content from being copied, you'd probably not hear a peep from the MPAA. I >doubt even the DVD CCA would be terribly upset about missing out on a >license fee or two. Besides the region coding point that others have swiftly brought up, there is the advertising model of revenue that the MPAA could miss out on. Admittedly, presently they only advertise themselves on DVDs, but that USED to be true in theaters - now movie theatres happily show TV ads before movies. CSS has the ability to forcibly play material before anything else is possible. LiViD won't have this restriction. No doubt that ads were slated for future disks once DVDs took over from video tape. Now that HUGE revenue stream is threatened. I think this post goes over the edge and proves that Jim Taylor is simply an apologist for the MPAA. He does serve the useful purpose of forcing us to clarify our arguments to the point where most people will be able see them clearly. ________________________________________________________________________ Get Your Private, Free E-mail from MSN Hotmail at http://www.hotmail.com From dvd-discuss-owner@eon.law.harvard.edu Sun Aug 6 12:47:26 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA12600 for dvd-discuss-outgoing; Sun, 6 Aug 2000 12:47:26 -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 MAA12597 for ; Sun, 6 Aug 2000 12:47:14 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id MAA25095 for dvd-discuss@eon.law.harvard.edu; Sun, 6 Aug 2000 12:52:34 -0400 Date: Sun, 6 Aug 2000 12:52:29 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] We've proved Reverse Engineering Message-ID: <20000806125228.A24499@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 Sun, Aug 06, 2000 at 01:16:16PM +0300 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sun, Aug 06, 2000 at 01:16:16PM +0300, Sampo A Syreeni wrote: > On Sat, 5 Aug 2000, Jim Taylor wrote: > > >I don't think so. Why would they be upset about a device that (if all the > >righteous claims of "this is only to play legitimate DVDs on Linux" are > >true) will lead to more sales of their discs? They fear one thing: copies of > >their movies being distributed without them being paid. > > Do you think we should make a catalog out of the MPAA-frightening > consequences of DeCSS (general sense, including LiVID)?.... What would stop the studios from (1) establishing a market for DVDs with the DVD-CCA-sanctioned players, and then (2) restricting use in the same way they did with Circuit City Divx, to more or less pay-per-view? Their problem with Divx was that consumers resisted the restrictions and so Circuit City could not reach a critical mass of sales. But there may be a way to circumvent the market through DMCA if consumers don't realize what is happening and have no control over it and no legal way to circumvent studio control. Jim, I appreciate your arguments here but I think defense already has responses. It really should be copying that is the concern under the law, not control. But studios have chosen to disallow even fair use copying (one backup copy). They interpret the "commercial use" to mean *any* conceivable use for copying. This is directly opposite Vault v Quaid. The law should not ban devices but use of devices in the way this criminal law states. DeCSS was developed so as to implement LiViD, not to be used for copying without authorization. Copying was only incidental, and clearly not practical for infringement. And if the authority model is the licensing of players then the antitrust arguments are very effective. As well, perpetual patent or copyright claims are unconstitutional. You may be right that plaintiffs will argue this way. Can you help defense develop a better refutation? From dvd-discuss-owner@eon.law.harvard.edu Sun Aug 6 16:44:14 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA13507 for dvd-discuss-outgoing; Sun, 6 Aug 2000 16:44:14 -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 QAA13504 for ; Sun, 6 Aug 2000 16:44:11 -0400 Received: from naboo (user-2inib0s.dsl.mindspring.com [165.121.44.28]) by avocet.prod.itd.earthlink.net (8.9.3-EL_1_3/8.9.3) with ESMTP id NAA29365 for ; Sun, 6 Aug 2000 13:44:06 -0700 (PDT) From: "Jim Taylor" To: Subject: RE: [dvd-discuss] We've proved Reverse Engineering Date: Sun, 6 Aug 2000 13:44:04 -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) Importance: Normal X-MimeOLE: Produced By Microsoft MimeOLE V5.50.4133.2400 In-Reply-To: <20000806082014.B18610@inka.de> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Sham Gardner, on Saturday, August 05, 2000 11:20 PM, wrote >However as even Judge Kaplan has now acknowledged, nothing they can do in the >courtroom will prevent that, even if DeCSS were the only way possible to >copy DVD content, which it isn't. And I don't think they're stupid enough >not to know that. By winning the case against 2600 they hope to establish precedent for future prosecution of DeCSS-like programs, and they hope to strengthen the DMCA. >I don't claim to know why controlling the players means so >much to them, but as far as I can tell it is the only logical explanation >for what they are doing. It's not a mystery. If they control the players, then they have a much better chance of preventing copies. Which goes back to my original point -- what they fear is copying. -- Jim Taylor Author of DVD Demystified and the DVD FAQ From dvd-discuss-owner@eon.law.harvard.edu Sun Aug 6 16:44:11 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA13499 for dvd-discuss-outgoing; Sun, 6 Aug 2000 16:44:11 -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 QAA13491 for ; Sun, 6 Aug 2000 16:44:10 -0400 Received: from naboo (user-2inib0s.dsl.mindspring.com [165.121.44.28]) by avocet.prod.itd.earthlink.net (8.9.3-EL_1_3/8.9.3) with ESMTP id NAA29165 for ; Sun, 6 Aug 2000 13:44:00 -0700 (PDT) From: "Jim Taylor" To: Subject: RE: [dvd-discuss] the definition of 'Circumvention' Date: Sun, 6 Aug 2000 13:43:59 -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 X-MimeOLE: Produced By Microsoft MimeOLE V5.50.4133.2400 In-Reply-To: <20000806023826.33111.qmail@hotmail.com> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Harold Eaton, on Saturday, August 05, 2000 7:38 PM, wrote > >Jim Taylor wrote: >> >>You cheated by changing "with" to "and." To wit... > >Actually, this was not cheating, it was a consession! >Keeping the word as "with" makes it an even stronger >statement in my opinion. I have examined every single >definition of "with" in my dictionary, and either it >makes nonsense out of the sentence, or BOTH authority >and processess are REQUIRED to grant access. With in this case can simply be taken to mean "having" (as in "with my father's blessing, I struck out on my own"). The device has or does not have authority. >CSS TECHNOLOGY >doesn't require authority (unless its in the title key). >Maybe you're just renaming CSS something else when it doesn't >have authority? Agreed. The CSS technology has no authority in and of itself. Only the devices have authority to implement CSS. >Suppose instead of taking money when breaking in to the >DVD-CCA, they steal the CSS technology instead and used it. >(Perhaps there was a complete chipset implementing CSS) >Now there is no contract, so there is no authority, and >guess what - it gives access to works! And guess what? The DVD CCA would claim that it is not authorized access. -- Jim Taylor Author of DVD Demystified and the DVD FAQ From dvd-discuss-owner@eon.law.harvard.edu Sun Aug 6 16:52:34 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA13780 for dvd-discuss-outgoing; Sun, 6 Aug 2000 16:52:34 -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 QAA13777 for ; Sun, 6 Aug 2000 16:52:33 -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 QAA29026 for ; Sun, 6 Aug 2000 16:52:29 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id QAA09462; Sun, 6 Aug 2000 16:52:28 -0400 (EDT) Date: Sun, 6 Aug 2000 16:52:28 -0400 (EDT) Message-Id: <200008062052.QAA09462@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: RE: [dvd-discuss] We've proved Reverse Engineering In-Reply-To: <20000806150313.40288.qmail@hotmail.com> References: <20000806150313.40288.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 this post goes over the edge and proves that Jim Taylor > is simply an apologist for the MPAA. He does serve the useful > purpose of forcing us to clarify our arguments to the point where > most people will be able see them clearly. He also serves the far more useful role of giving us his best impression of the MPAA's arguments --- which, given his background, tends to be pretty good. That's what it means to be a devil's advocate, which is the way he has described his intentions many times. Not always the most pleasant folks to deal with (I've had my tussles with Jim myself, though I've never taken anything personally), but they're very, very, useful. I think a genuine apologist for the movie studios would probably have gone to find a more sympathetic audience some time ago... rst From dvd-discuss-owner@eon.law.harvard.edu Sun Aug 6 19:23:29 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA16184 for dvd-discuss-outgoing; Sun, 6 Aug 2000 19:23:29 -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 TAA16181 for ; Sun, 6 Aug 2000 19:23:28 -0400 Received: from naboo (user-2inib0s.dsl.mindspring.com [165.121.44.28]) by avocet.prod.itd.earthlink.net (8.9.3-EL_1_3/8.9.3) with ESMTP id QAA26233 for ; Sun, 6 Aug 2000 16:23:23 -0700 (PDT) From: "Jim Taylor" To: Subject: RE: [dvd-discuss] We've proved Reverse Engineering Date: Sun, 6 Aug 2000 16:23:18 -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 X-MimeOLE: Produced By Microsoft MimeOLE V5.50.4133.2400 In-Reply-To: <398D2D06.E7DC7D47@mit.edu> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Ravi Nanavati, on Sunday, August 06, 2000 2:17 AM, wrote >If they fear copies of their disks being distributed so much why >haven't they done anything about Power Ripper and D.O.D Speed >ripper? Because it's much harder. They can't charge that those tools circumvent CSS. -- Jim Taylor Author of DVD Demystified and the DVD FAQ From dvd-discuss-owner@eon.law.harvard.edu Sun Aug 6 19:23:56 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA16192 for dvd-discuss-outgoing; Sun, 6 Aug 2000 19:23:56 -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 TAA16189 for ; Sun, 6 Aug 2000 19:23:54 -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 SAA08781 for ; Sun, 6 Aug 2000 18:23:29 -0500 Message-ID: <398DF38D.A3A9C0CB@mninter.net> Date: Sun, 06 Aug 2000 18:23:57 -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 Jim Taylor wrote: > DeCSS.exe doesn't circumvent; people with DeCSS.exe and DivX;-) circumvent. I'm exhausted of explaining how all implementations must have equal status under 1201. If you don't understand my argument, please take another look at http://eon.law.harvard.edu/archive/dvd-discuss/msg06119.html http://eon.law.harvard.edu/archive/dvd-discuss/msg06221.html Either authority is conveyed with the purchase of a key and no implementations can ever be circumvention devices, or authority is determined external to the system and every CSS implementation has the same "primary use or purpose." They are functionally equavalent, after all. The implications of any other conclusion are well established on this list as unconstitutional, anti-competitive and counter to congressional intent. I'd add illogical and fraudulent. > DeCSS does not protect works from being copied like licensed CSS > implementations do. So it isn't authorized. So it circumvents. One > can say that all CSS implementations circumvent, but authorized > implementations are legally allowed to do so by the DMCA. What happens to the data after authorized access is not covered by 1201 or copyright. Attempts to relate the two result in unconstitutional conclusions. CSS is an access control measure. This is a 1201(a)(2) case. As I say, provide me a scenario where authorization is external to the access control measure that is constitutional, not anti-competitive, consistent with congresssional intent, and not fraudulent. Because my reading is all of these. > Who says they determine or grant authorization? They are merely > access control devices that attempt to limit access to authorized > environments. Boy this is fantasically obtuse and overreaching. Are you saying that DeCSS doesn't fully implement CSS? Then read http://eon.law.harvard.edu/archive/dvd-discuss/msg06221.html "If the argument is that DeCSS doesn't fully implement, the burden of proof is on the plaintiffs to demonstrate what pieces are missing from the implementation. Ah! but those contracts are under seal! They utterly failed at this in court. They never suggested that DeCSS breaks or tricks CSS. In fact, DeCSS does its job well as a CSS implementation." > > If there is > > authority that exceeds the bounds of the CSS system, then no CSS > > implementation accurately determines authority in its use and > > they're all equally circumvention devices. > > Right, but CSS doesn't determine authority. Then all CSS implementations are equally circumvention devices whose "primary use or purpose is circumvention." Quantify that however you wish. CSS implementations, you see, cannot circumvent THEMSELVES. They're the access control measure, swapping one proper implementation for another proper implementation has no effect on the usefulness of the measure. Here, I've got another great analogy. It's based in fact. My mom and dad are divorced and live 35 minutes away from each other. We discovered recently that the house keys for the two houses on my sister's keyring ARE IDENTICAL. Ignore for a moment the fact that my sister has two identical keys, it confuses the issue. Let's say she lost one. The remaining key was given to her by my mom or dad. Of course, she's a nice lady so she's authorized to get into either house. Well, she's nice, but a little strange. She wanted to play a trick on my mom, so she took my mom's lock and replaced it with my dad's lock (brand DeCSS). It's a stupid practical joke because **it doesn't make any difference**. Nobody will even notice the lock had been changed. Is my dad's lock a circumvention device? Is its primary use or purpose to circumvent the lock my mom had on her house? I hope it is obvious that it cannot be. No more than the original lock, anyway. They are functionally equivalent. My sister was given authorization to enter. You should see now, that making use of her key to get into the house is what 1201 deals with in (a)(2), not the device that utilizes that key to provide access. If someone counterfited a key or found her lost key on the street, using that key is circumvention. It is tricking or taking advantage of the protection measure. It is accessing without authorization. The fraudulent or stolen key might be a circumvention device (but probably not because it is functionally equivallent to a key used legitimately. Using a key that works without authority is circumvention, the key is not a circumvention device.) Selling a computer program with all the title keys to a bunch of movies would be a circumvention device. Not the lock, unless the lock was broken. If a stranger had replaced the lock on the door, that's not circumvention. It doesn't make sense. They still get in just as often. Moving away for the analogy, we're talking about published, copyrighted works. With no contractual obligations on use restriction or access restriction, just variously crippled software with equally functional CSS implementations. CSS provides access, what happens after that is out of the copyright holders control. So if I find a CSS implementation that suits me better, I have the right to use it. I also have the right to traffick in it, because CSS implementations cannot circumvent themselves. Things circumvent CSS implementations. I'm not saying I'm done talking about it, because I'm easily provoked; but unless you (or someone) provides solid reasoning behind the idea that 1201 permits extra-CSS authority determinations by explaining how it is not unconstitutional, counter to congressional intent, anti-competitive, and fraud, I'll have to keep repeating myself. This is the devil's advocate reasoning we need to see. -- moseng@mninter.net I use PGP 6.5.3 -- http://www.underwhelm.org/pgp From dvd-discuss-owner@eon.law.harvard.edu Sun Aug 6 19:27:43 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA16406 for dvd-discuss-outgoing; Sun, 6 Aug 2000 19:27:43 -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 TAA16402 for ; Sun, 6 Aug 2000 19:27:42 -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 SAA09013 for ; Sun, 6 Aug 2000 18:27:17 -0500 Message-ID: <398DF471.453E6B0B@mninter.net> Date: Sun, 06 Aug 2000 18:27:45 -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] We've proved Reverse Engineering 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: > Because it's much harder. They can't charge that those tools > circumvent CSS. Why not, if CSS is the whole kit and caboodle of licensing restrictions? They are more circumvention devices than DeCSS is. -- moseng@mninter.net I use PGP 6.5.3 -- http://www.underwhelm.org/pgp From dvd-discuss-owner@eon.law.harvard.edu Sun Aug 6 19:29:45 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA16516 for dvd-discuss-outgoing; Sun, 6 Aug 2000 19:29:45 -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 TAA16495 for ; Sun, 6 Aug 2000 19:29:44 -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 TAA00121; Sun, 6 Aug 2000 19:29:39 -0400 (EDT) Message-ID: <398DF541.62D70C9B@mit.edu> Date: Sun, 06 Aug 2000 19:31:13 -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: Content-Type: text/plain; charset=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: > > Sham Gardner, on Saturday, August 05, 2000 11:20 PM, wrote > >However as even Judge Kaplan has now acknowledged, nothing they can do in > the > >courtroom will prevent that, even if DeCSS were the only way possible to > >copy DVD content, which it isn't. And I don't think they're stupid enough > >not to know that. > > By winning the case against 2600 they hope to establish precedent for future > prosecution of DeCSS-like programs, and they hope to strengthen the DMCA. > > >I don't claim to know why controlling the players means so > >much to them, but as far as I can tell it is the only logical explanation > >for what they are doing. > > It's not a mystery. If they control the players, then they have a much > better chance of preventing copies. Which goes back to my original point -- > what they fear is copying. > It is unfortunate that Bruce Schneier did not testify. He could completely blow their fear of copies out of the water. If the movie studios really feared copying they had no business releasing movies that could be played by software players. At the level of controlling copying software players (or even just software programs in general) are completely uncontrollable no matter how many license agreements you wrap them in. There is a long, long history of copy protection in the software industry. It never worked. All it did was annoy legitimate customers and amuse the pirates. Can the movie studios seriously believe that they can solve a problem that stymied the best efforts of the software industry for the better part of a decade? - Ravi Nanavati From dvd-discuss-owner@eon.law.harvard.edu Sun Aug 6 19:30:53 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA16750 for dvd-discuss-outgoing; Sun, 6 Aug 2000 19:30:53 -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 TAA16729 for ; Sun, 6 Aug 2000 19:30:52 -0400 Received: from naboo (user-2inib0s.dsl.mindspring.com [165.121.44.28]) by avocet.prod.itd.earthlink.net (8.9.3-EL_1_3/8.9.3) with ESMTP id QAA12427 for ; Sun, 6 Aug 2000 16:30:47 -0700 (PDT) From: "Jim Taylor" To: Subject: RE: [dvd-discuss] We've proved Reverse Engineering Date: Sun, 6 Aug 2000 16:30:44 -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: Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Ingo Molnar, on Sunday, August 06, 2000 3:01 AM, wrote >well, there are CSS licensing fees. But more imporantly, with LiViD there >goes the possibility for them to control use of authorized DVDs, which >*is* a very lucrative business. Just compare the price of DVDs in the US >and in Europe, then multiply it by the millions of DVDs sold every month. The studios get money no matter where the disc is sold. In some cases they get *more* money for US discs since they don't go through an intermediate distributor or studio. If there are more players (including LiViD), then they sell more discs, and they get more money. It's as simple as that. >By artificially fixing prices along geographical regions and against free >market rules they can sell DVDs at higher prices in places where people >can afford higher prices. (and exclude legitimate import of cheaper DVDs) Try buying DVDs in Japan, the UK, or Scandinavia. I have -- they cost more. I've checked DVD prices in Spain. They are higher than in the U.S. The Spaniards can't "afford higher prices," since per-capita income in Spain is lower than in the U.S. Discs cost more outside of the U.S. than inside, mostly because the market is smaller and distribution is more complicated. Regional management has nothing to do with the studios making money. It's all about protecting their existing structure of distributors and regional distribution rights. Do you see them suing manufacturers who make region-free players? No. They complain a little, that's all, because it's not that important. I don't think region coding is a reason for CSS. I believe they just threw region coding in with CSS because it was an easy way to get a license to control it. It may turn around and bite them, since it weakens CSS as a TPM to add other requirements to the license. Harold Eaton, on Sunday, August 06, 2000 8:03 AM, wrote >Besides the region coding point that others have swiftly brought up, >there is the advertising model of revenue that the MPAA could miss >out on. Admittedly, presently they only advertise themselves on DVDs, >but that USED to be true in theaters - now movie theatres happily show >TV ads before movies. CSS has the ability to forcibly play material >before anything else is possible. This is completely incorrect. User operation control is a feature of the DVD-Video application format. It has nothing at all to do with CSS. Player manufacturers who fully support the DVD format license (not the CSS license) honor UOP restrictions such as those that force you to watch an ad. A CSS-licensed player could add the feature to skip over ads (actually, a few have) and not be in violation of the CSS license. >No doubt that ads were slated for future disks once DVDs took over >from video tape. Now that HUGE revenue stream is threatened. There is no revenue from advertising when a studio puts its own ads on a disc. If you mean revenue from additional sales, it's far from HUGE. On-disc advertising has a minimal effect compared to other forms of advertising. Forced ads are so annoying that studios may actually reduce potential sales. ;-) >I think this post goes over the edge and proves that Jim Taylor >is simply an apologist for the MPAA. He does serve the useful >purpose of forcing us to clarify our arguments to the point where >most people will be able see them clearly. You say apologist; I say devil's advocate. Read my book -- you'll discover that I think the regional management scheme is stupid and that CSS was pointless and doomed to fail. I often point out that the way to make money on DVDs and reduce copying is to sell the discs for a low price -- making it easier and cheaper to just buy a legitimate copy. The "hack it because it's a challenge" crowd will always hack no matter what you do, but they are an insignificant part of the viewing market. If you want to have a lopsided discussion with a bunch of people who agree with you, fine. Try Slashdot. The fact that I've talked to enough Hollywood executives to understand their views toward DVD shouldn't bother you nearly as much as the fact that (until a month ago) I worked for Microsoft. >:-> -- Jim Taylor Author of DVD Demystified and the DVD FAQ From dvd-discuss-owner@eon.law.harvard.edu Sun Aug 6 20:12:51 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA17531 for dvd-discuss-outgoing; Sun, 6 Aug 2000 20:12:51 -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 UAA17528 for ; Sun, 6 Aug 2000 20:12:49 -0400 Received: by aero.org id <17103-5>; Sun, 6 Aug 2000 17:12:39 -0700 Received: from mhultra.aero.org(130.221.88.102) via SMTP by aero.org, id smtpdEAAa04988; Sun Aug 6 17:12:22 2000 Received: from lahub01-a3.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Sun, 6 Aug 2000 17:12:14 -0700 Subject: RE: [dvd-discuss] We've proved Reverse Engineering 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 08/06/2000 05:12:13 PM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Date: Sun, 6 Aug 2000 17:12:26 -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Earlier someone said that Jim seems to be an apologist for MPAA. Understanding an adversaries motivation is not being appologist but is needed to reach effective compromise. As for the issue being copying: AGREED..For the MPAA they want to maximize profit and believe they it is the loss of revenue through copying. This has always been what the MPAA has feared. Consider their history. Until the late 40's they had absolute control of the production, distribution, and viewing of films. They dictated when and where they were shown. TV comes along and they discover a new market for all those films sitting in vaults. Then cable gave them another market. These people were used to having absolute control over EVERY aspect. Their business model is based upon absolute control..THey lost the theatres in the '40s but still managed to control distribution.Then the VCR gave them yet another distribution outlet they thought...but wait...nobody really wants to buy a play only VCR. If people can record things then they may fast forward through commercials or watch the film again or again or even people may get tired of watching a prerecorded tapes and sell it...no revenue on the used market....they hoped the courts would help them out. But then the Supreme Court ruled against them in the BetaMax case or rather didn't give them what they wanted completely. Then the Home Recording Act told them that the time and media shifting is legal. So....they have spent millions developing, promoting, and getting the laws set up to allow them to have absolute control again: this time into the privacy of the home through the use of technology under the guise of preventing piracy. (You may note that at no time has MPAA acknowledged the Home Recording Act or BetaMax. They keep saying that copying creates a loss of revenue for the artists). That's where MPAA is coming from....everything else is just little obstacles in achieving their objective of maximum revenues in perpetuity.... First Amendment - that's gotta go...can't have people talking about their technology. It's a trade secret that under DMCA becomes verbotten to discuss! Copyright...that's gotta go too. They control the film vaults and they want to keep you coming to them for enterainment. As long as they control, they don't need to let anything enter the public domain or "fair use" Reverse Engineering....hey they give you entertainment..why do you want otherwise? The important thing for MPAA is to turn back the clock.... "Jim Taylor" @eon.law.harvard.edu on 08/06/2000 01:45:19 PM Please respond to dvd-discuss@eon.law.harvard.edu Sent by: owner-dvd-discuss@eon.law.harvard.edu To: cc: Subject: RE: [dvd-discuss] We've proved Reverse Engineering Sham Gardner, on Saturday, August 05, 2000 11:20 PM, wrote >However as even Judge Kaplan has now acknowledged, nothing they can do in the: >courtroom will prevent that, even if DeCSS were the only way possible to >copy DVD content, which it isn't. And I don't think they're stupid enough >not to know that. By winning the case against 2600 they hope to establish precedent for future prosecution of DeCSS-like programs, and they hope to strengthen the DMCA. >I don't claim to know why controlling the players means so >much to them, but as far as I can tell it is the only logical explanation >for what they are doing. It's not a mystery. If they control the players, then they have a much better chance of preventing copies. Which goes back to my original point -- what they fear is copying. -- Jim Taylor Author of DVD Demystified and the DVD FAQ From dvd-discuss-owner@eon.law.harvard.edu Sun Aug 6 20:14:43 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA17603 for dvd-discuss-outgoing; Sun, 6 Aug 2000 20:14:43 -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 UAA17600 for ; Sun, 6 Aug 2000 20:14:41 -0400 Received: from localhost (localhost [[UNIX: localhost]]) by rjmconsulting.com (8.9.3/8.9.3) id RAA11312 for dvd-discuss@eon.law.harvard.edu; Sun, 6 Aug 2000 17:26:21 -0700 From: Russell (James) Miller To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] We've proved Reverse Engineering Date: Sun, 6 Aug 2000 17:25:37 -0700 X-Mailer: KMail [version 1.0.29.2] Content-Type: text/plain References: <398DF541.62D70C9B@mit.edu> In-Reply-To: <398DF541.62D70C9B@mit.edu> MIME-Version: 1.0 Message-Id: <00080617262100.03073@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 Sun, 06 Aug 2000, you wrote: > many license agreements you wrap them in. There is a long, > long history of copy protection in the software industry. > It never worked. All it did was annoy legitimate customers > and amuse the pirates. Can the movie studios seriously > believe that they can solve a problem that stymied the best > efforts of the software industry for the better part > of a decade? > > - Ravi Nanavati The software industry did not buy a law to help them make it work. Doesn't mean they'll succeed - but that lesson wasn't lost on them. --james (Russell) -- Russell (James) 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 Sun Aug 6 20:21:20 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA17670 for dvd-discuss-outgoing; Sun, 6 Aug 2000 20:21:20 -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 UAA17667 for ; Sun, 6 Aug 2000 20:21:19 -0400 Received: from naboo (user-2inib0s.dsl.mindspring.com [165.121.44.28]) by avocet.prod.itd.earthlink.net (8.9.3-EL_1_3/8.9.3) with ESMTP id RAA06132 for ; Sun, 6 Aug 2000 17:21:14 -0700 (PDT) From: "Jim Taylor" To: Subject: RE: [dvd-discuss] the definition of 'Circumvention' Date: Sun, 6 Aug 2000 17:21:10 -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: <398DF38D.A3A9C0CB@mninter.net> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Chris Moseng, on Sunday, August 06, 2000 4:24 PM, wrote > >I'm exhausted of explaining how all implementations must have equal >status under 1201. If you don't understand my argument, please take >another look at > >http://eon.law.harvard.edu/archive/dvd-discuss/msg06119.html >http://eon.law.harvard.edu/archive/dvd-discuss/msg06221.html Oh, I completely understand your position. (Re-reading your response to my own post won't change anything.) But it's just that -- a position. An educated opinion. I present a counteropinion that seems equally supportable. >Either authority is conveyed with the purchase of a key and no >implementations can ever be circumvention devices, or authority is >determined external to the system and every CSS implementation has the >same "primary use or purpose." The crux is definition of authority. If one maintains that authority has nothing to do with purchase of a key, then CSS implementations are not equal -- i.e., some are authorized, some aren't. >The implications of any other conclusion are well established on >this list as unconstitutional, anti-competitive and counter to >congressional intent. I'd add illogical and fraudulent. Possibly. But that's the position of the MPAA. You can't argue as fact that implementations of CSS are equivalent based on one interpretation of DMCA. The MPAA was largely responsible for much of the language of 1201. They believe it lawfully upholds their position. You repeatedly go back to this "implementation" thing, but you leave the implementations in a vacuum. 1201 talks about "use" and "purpose." These must be considered as defining characteristics of an implementation. Therefore, not all implementations are equal under 1201. [snipped analogy about identical locks] The analogy does little to illustrate the problem. You say your sister was authorized. A copyright holder does not authorize people to use CSS -- it authorizes devices (according to the MPAA). To rework the analogy, it would be like two versions of a door, each with the same lock. One door only opens enough that you can look into the house. You can't get in or take anything out. The other opens fully. The lock (CSS) is the same. The doors (implementations) are different. DMCA does not limit its scope to the abstract application of a TPM. It talks about devices, products, and services. And again, it talks about use and purpose. If your mother authorizes the big door on her house, but your father only authorizes the small door on his house, then your sister can't change doors and claim that it's ok because the locks are the same. To stretch the analogy, if she changed the door on your father's house then she would be trafficking in unauthorized devices. >I'm not saying I'm done talking about it, because I'm easily provoked; >but unless you (or someone) provides solid reasoning behind the idea >that 1201 permits extra-CSS authority determinations by explaining how >it is not unconstitutional, counter to congressional intent, >anti-competitive, and fraud, I'll have to keep repeating myself. This is >the devil's advocate reasoning we need to see. I have a hard time arguing against this, since I largely agree with it, but I'll give it a shot. I'm ignoring the hyperbole about fraud and illogicality. There are many cases where the law allows market control when there is a perceived benefit. Public utilities, private toll roads, and CC&Rs in communities are but a few examples (which you might be able to poke holes in, but the point is still valid). The government chose to enact the DMCA to strengthen protections for copyright holders in a digital environment where copying is so easy. It can be seen as an extension to existing copyright law. How is that unconstitutional? You can be sure that there were howls of protest about the unconstitutionality of various copyright legislations over the years, but most have been upheld. Patents and copyrights are anti-competitive, but they are legal. The government set limits on the terms of patent rights. They have changed them before. Why can't the DMCA be yet another (indirect) change that allows perpetual market control in certain cases? -- Jim Taylor Author of DVD Demystified and the DVD FAQ From dvd-discuss-owner@eon.law.harvard.edu Sun Aug 6 20:26:07 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA17739 for dvd-discuss-outgoing; Sun, 6 Aug 2000 20:26:07 -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 UAA17736 for ; Sun, 6 Aug 2000 20:26:07 -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 UAA26397; Sun, 6 Aug 2000 20:26:02 -0400 (EDT) Message-ID: <398E0278.D718F41D@mit.edu> Date: Sun, 06 Aug 2000 20:27:36 -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] the definition of 'Circumvention' References: <398DF38D.A3A9C0CB@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: > I'm not saying I'm done talking about it, because I'm easily provoked; > but unless you (or someone) provides solid reasoning behind the idea > that 1201 permits extra-CSS authority determinations by explaining how > it is not unconstitutional, counter to congressional intent, > anti-competitive, and fraud, I'll have to keep repeating myself. This is > the devil's advocate reasoning we need to see. I'll take a stab at it. The best argument I can think of that enables what looks like extra-CSS authority is to assert that authority comes from the player key. DeCSS does not have an authorized player key it uses the Xing key, but no one authorized it to. This means that despite the fact that DeCSS and the Xing player are functionally equivalent, Xing is a CSS implementation because it had a licensed key (until recently) and DeCSS is a circumvention device because it didn't have a licensed key. Why this isn't unconstitutional: If CSS were used for anything other than encrypting movies on DVD released by the MPAA then DeCSS would have non-circumvention uses, and couldn't be banned. No one uses CSS for any other purpose, the same way no one scrambles video signals for any purpose other than controlling access to premium cable channels [1], so any use of DeCSS is circumvention. Congress certainly has the power to ban circumvention (and you're not going to get far arguing it doesn't since cable descrambler law is a lot older than the DMCA). Banning circumvention devices helps prevent circumvention, but the constitutional question is whether Congress can grant the process monopoly that banning circumvention devices entails. Since DeCSS has no use other than to circumvent (which is already illegal), the additional property grant is negligible. This negligible property grant is constitutional because it will help enable the smooth functioning of a market involving copyrighted works protected by access controls and Congress's belief, as expressed in the DMCA, is that such a market will promote the development and distribution of digital versions of copyrighted works (therefore "promoting the progress of science and the useful arts"). Why this isn't counter to congressional intent: Congress was concerned with banning illegitimate devices like DeCSS. DeCSS has no other use than to circumvent the CSS access control, as described above. In fact, DeCSS has a "copy" button, so it has an obvious, infringing use and no apparent non-infringing, or non-circumvention use. The Linux arguments are a red herring [ouch!], for two reasons: 1) Congress banned cable descramblers. No one has seriously argued that it is OK to build descramblers because someone might later add an NTSC -> PAL converter to the descrambler making it possible for Europeans who move to the US to keep their PAL TVs, even if they want cable. 2) CSS-licensed Linux players are in development. Anyone interested in legitimately viewing a DVD should be willing to wait for a licensed CSS implementation, so those not willing to wait must be after something else. Why this isn't anti-competitive: No one is required to include CSS in a DVD player. DVD players can be build that do not play CSS-encrypted disks, and for various reasons a number of DVDs are non CSS-encrypted. The fact that many movies are CSS-encrypted only demonstrates that Toshiba and Matsushita developed a good access control technology. Others are free to develop their own access control technologies and, if they prove popular, DVD players will incorporate them as well. Why this isn't fraud: The only fraud here is claiming that DeCSS is anything but a circumvention device. Consumers buy DVDs and play them in DVD players. The only times there are problems are when player or disk manufacturers make mistakes. If such a problem is not resolved to a consumer's satisfaction, they can pursue a claim against the appropriate party, and these problems are accidental, so fraud is not an issue. I feel dirty after that, but I hope it helped. - Ravi Nanavati [1] This is a side benefit of CSS's broken encryption. Someone who wanted real protection rather than a pretexual hook would be naturally drawn to another system. From dvd-discuss-owner@eon.law.harvard.edu Sun Aug 6 20:28:00 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA17813 for dvd-discuss-outgoing; Sun, 6 Aug 2000 20:28:00 -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 UAA17810 for ; Sun, 6 Aug 2000 20:27:55 -0400 Received: from naboo (user-2inib0s.dsl.mindspring.com [165.121.44.28]) by avocet.prod.itd.earthlink.net (8.9.3-EL_1_3/8.9.3) with ESMTP id RAA22266 for ; Sun, 6 Aug 2000 17:27:50 -0700 (PDT) From: "Jim Taylor" To: Subject: RE: [dvd-discuss] We've proved Reverse Engineering Date: Sun, 6 Aug 2000 17:27:46 -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 X-MimeOLE: Produced By Microsoft MimeOLE V5.50.4133.2400 In-Reply-To: <398DF471.453E6B0B@mninter.net> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Rippers do not circumvent. They sit at the other end of authorized CSS devices and they copy the decrypted, decoded output. They do not circumvent the access control provided by CSS. They are not covered in the CSS licensing agreement (well, they are, in that the CSS license says that a PC implementation does not have to protect the signal after it is decrypted and decoded). -- 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 Chris Moseng Sent: Sunday, August 06, 2000 4:28 PM To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] We've proved Reverse Engineering Jim Taylor wrote: > Because it's much harder. They can't charge that those tools > circumvent CSS. Why not, if CSS is the whole kit and caboodle of licensing restrictions? They are more circumvention devices than DeCSS is. -- moseng@mninter.net I use PGP 6.5.3 -- http://www.underwhelm.org/pgp From dvd-discuss-owner@eon.law.harvard.edu Sun Aug 6 20:47:45 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA18319 for dvd-discuss-outgoing; Sun, 6 Aug 2000 20:47:45 -0400 Received: from web55.ntx.net (web55.ntx.net [209.1.144.165]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id UAA18316 for ; Sun, 6 Aug 2000 20:47:44 -0400 Received: from cdpage.com (bdsl40.dnvr.uswest.net [209.180.249.40]) by web55.ntx.net (8.8.5/8.7.3) with ESMTP id RAA18048 for ; Sun, 6 Aug 2000 17:48:06 -0700 (PDT) Message-ID: <398E0549.906110F6@cdpage.com> Date: Sun, 06 Aug 2000 18:39:37 -0600 From: Dana Parker Organization: DVD Diva X-Mailer: Mozilla 4.72 [en] (Windows NT 5.0; I) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] We've proved Reverse Engineering 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, on Sunday, August 06, 2000 3:01 AM, wrote > > > >I think this post goes over the edge and proves that Jim Taylor > >is simply an apologist for the MPAA. He does serve the useful > >purpose of forcing us to clarify our arguments to the point where > >most people will be able see them clearly. FWIW, I can vouch for Jim's stance towards the MPAA, CSS and region codes, since he and I have been in agreement that they are all clueless since LONG before DeCSS appeared. He serves the most useful purpose imaginable - he points out to you where you're wrong. And believe me, he does know. The bottom line is, the MPAA, CSS, and regional codes are bad enough. There's no need to assign them more brilliantly devious conspiracies than they deserve credit for. That's a tactic best left to Jack Valenti, don't you think? -- Dana J. Parker http://www.cdpage.com http://www.emedialive.com http://www.dvdpro.net mailto:danapark@ix.netcom.com From dvd-discuss-owner@eon.law.harvard.edu Sun Aug 6 20:53:14 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA18684 for dvd-discuss-outgoing; Sun, 6 Aug 2000 20:53:14 -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 UAA18681 for ; Sun, 6 Aug 2000 20:53:03 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id UAA25342 for dvd-discuss@eon.law.harvard.edu; Sun, 6 Aug 2000 20:58:27 -0400 Date: Sun, 6 Aug 2000 20:58:22 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] We've proved Reverse Engineering Message-ID: <20000806205822.B24499@eldritchpress.org> References: Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: ; from jtfrog@usa.net on Sun, Aug 06, 2000 at 04:30:44PM -0700 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sun, Aug 06, 2000 at 04:30:44PM -0700, Jim Taylor wrote: >.... [a lot of interesting stuff deleted...] ... > > I don't think region coding is a reason for CSS. I believe they just threw > region coding in with CSS because it was an easy way to get a license to > control it. It may turn around and bite them, since it weakens CSS as a TPM > to add other requirements to the license. No, I believe not only region coding but the whole business model of the movie studios is important to them. As you point out, there is a lot of money involved with the licensing, and they would like to preserve those arrangements. We heard testimony about how studios protect "crown jewels" with all sorts of manipulations. But you are right that this kind of control mixed up with other control may make the control less constitutional. Congress didn't intend this type of control; the studios did. > You say apologist; I say devil's advocate. Read my book -- you'll discover > that I think the regional management scheme is stupid and that CSS was > pointless and doomed to fail. I often point out that the way to make money > on DVDs and reduce copying is to sell the discs for a low price -- making it > easier and cheaper to just buy a legitimate copy. The "hack it because it's > a challenge" crowd will always hack no matter what you do, but they are an > insignificant part of the viewing market. But why didn't the studios take your advice? You simply confirm the testimony of defense that it is still much cheaper to buy the original rather than copy. Therefore I assert that studios must have some other motive than to prevent copying that is obviously still impractical. They need to "send a lesson" that they are in complete control, and their technical failure (and their failure to listen to your reasonable advice) does not mean that they cannot prevail in court. Once they gain this control I believe they will use it in new ways. As far as your other arguments go, Jim, they might be of importance to see how plaintiffs think, but they don't go far to meet the many refutations that have been posted on this list. You haven't explained how preventing any copying can be consistent with first sale and first use. You haven't justified control over player keys as an extension of copyright. And your assertion that Congress can give perpetual copyright is clearly wrong. Technically you may be correct in every way, but legally you don't seem to be--and the question is now legal rather than factual or technical. For example, in your book you place the online publication of the CSS algorithm next to instructions on how to build a nuclear weapon. This is probably how the studios think of it, but lawyers remember the case of Progressive magazine, in which this very issue was decided, and the First Amendment won. True, many people think Hollywood is more important than our national defense, but that is beside the point here. From dvd-discuss-owner@eon.law.harvard.edu Sun Aug 6 22:00:23 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA21437 for dvd-discuss-outgoing; Sun, 6 Aug 2000 22:00:23 -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 WAA21434 for ; Sun, 6 Aug 2000 22:00:21 -0400 Received: from mit.edu (h0050da62b39d.ne.mediaone.net [24.147.219.153]) by chmls06.mediaone.net (8.8.7/8.8.7) with ESMTP id WAA17801; Sun, 6 Aug 2000 22:00:16 -0400 (EDT) Message-ID: <398E188E.3B9DD9FC@mit.edu> Date: Sun, 06 Aug 2000 22:01:50 -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] We've proved Reverse Engineering References: <398DF541.62D70C9B@mit.edu> <00080617262100.03073@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 "Russell (James) Miller" wrote: > > On Sun, 06 Aug 2000, you wrote: > > many license agreements you wrap them in. There is a long, > > long history of copy protection in the software industry. > > It never worked. All it did was annoy legitimate customers > > and amuse the pirates. Can the movie studios seriously > > believe that they can solve a problem that stymied the best > > efforts of the software industry for the better part > > of a decade? > > > > - Ravi Nanavati > > The software industry did not buy a law to help them make it work. > > Doesn't mean they'll succeed - but that lesson wasn't lost on them. > > --james (Russell) What good does passing a law do? It's just like technical means of preventing copying. It annoys legitimate users who want to make some sort of fair use of your work (remember them, the paying customers?), and pirates (the people who are already willing to commit copyright infringment) laugh at the money wasted on campaign contributions while they circumvent the access control and make all the copies they want. It doesn't change the calculation for real pirates because they depend on hiding their operations well enough so they are not worth (economically) the effort of tracking down and prosecuting. The studios talk about "keeping honest people honest" and the only halfway-sensible thing I could get out of that is that (from their perspective) passing a law restores the pre-digital cost/benefit ratio with respect to copying, but given that there are lots of ways of making copies without circumventing access controls (and there always have to be such ways unless they get us to buy "trusted" speakers and monitors), I just don't think that's that's even close to right. - Ravi Nanavati From dvd-discuss-owner@eon.law.harvard.edu Sun Aug 6 22:43:59 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA22298 for dvd-discuss-outgoing; Sun, 6 Aug 2000 22:43:59 -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 WAA22295 for ; Sun, 6 Aug 2000 22:43:58 -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 WAA17996 for ; Sun, 6 Aug 2000 22:43:54 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id WAA11449; Sun, 6 Aug 2000 22:43:52 -0400 (EDT) Date: Sun, 6 Aug 2000 22:43:52 -0400 (EDT) Message-Id: <200008070243.WAA11449@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] the definition of 'Circumvention' In-Reply-To: <398E0278.D718F41D@mit.edu> References: <398DF38D.A3A9C0CB@mninter.net> <398E0278.D718F41D@mit.edu> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Ravi Nanavati writes: > Chris Moseng wrote: > > I'm not saying I'm done talking about it, because I'm easily provoked; > > but unless you (or someone) provides solid reasoning behind the idea > > that 1201 permits extra-CSS authority determinations by explaining how > > it is not unconstitutional, counter to congressional intent, > > anti-competitive, and fraud, I'll have to keep repeating myself. This is > > the devil's advocate reasoning we need to see. > > I'll take a stab at it. Nicely done. Some early points toward a refutation: > > The best argument I can think of that enables what looks like > extra-CSS authority is to assert that authority comes from > the player key. DeCSS does not have an authorized player key > it uses the Xing key, but no one authorized it to. This means > that despite the fact that DeCSS and the Xing player are > functionally equivalent, Xing is a CSS implementation because > it had a licensed key (until recently) and DeCSS is a > circumvention device because it didn't have a licensed key. FWIW, does anyone have an authoritative citation to the revocation of the Xing player key? I've seen conflicting reports. > Why this isn't unconstitutional: If CSS were used for anything > other than encrypting movies on DVD released by the MPAA then > DeCSS would have non-circumvention uses, and couldn't be banned. > No one uses CSS for any other purpose, the same way no one > scrambles video signals for any purpose other than controlling > access to premium cable channels [1], so any use of DeCSS is > circumvention. Congress certainly has the power to ban > circumvention (and you're not going to get far arguing it doesn't > since cable descrambler law is a lot older than the DMCA). Ravi's argument relies heavily on equating cable scrambling with CSS. But the purposes of the two are fundamentally different. Cable scrambling has the effect of keeping content away from people who have not paid for it. On the explicit testimony of MPAA representatives, that is not the effect, or intent, of CSS. The point of CSS, as Marks stated at very great length in his colloquy, is to keep digital movies away from *equipment* that does not conform to standards dictated by the movie studios, for their own commercial purposes (such as region coding, which secures enormous markups for them on DVDs purchased in Europe and elsewhere, by suppressing market forces which would otherwise come into play); also by protecting advertising, and so forth. So, right away, we have the question as to whether this is the form of protection that Congress meant to grant, and whether the LiViD player is the sort of thing that they were referring to in their debates as a "black box". Which is nonsense --- the LiViD player's functions are outwardly indistinguishable from other commercial players sanctioned by the studios (aside, perhaps, from a certain lack of polish). > Banning circumvention devices helps prevent circumvention, > but the constitutional question is whether Congress can > grant the process monopoly that banning circumvention > devices entails. Since DeCSS has no use other than to circumvent > (which is already illegal), the additional property grant is > negligible. This negligible property grant is constitutional > because it will help enable the smooth functioning of a market > involving copyrighted works protected by access controls and > Congress's belief, as expressed in the DMCA, is that such a > market will promote the development and distribution of digital > versions of copyrighted works (therefore "promoting the progress > of science and the useful arts"). Consequences of the property grant include, so far, the aforementioned mechanisms imposed on the players (region coding, ad-forcing), which are clearly counter to the interests of consumers and the public, and more of their ilk. There is also the strong potential for imposition of a cartel on the manufacture of players[*]; the movie studios' interpretation of the law allows them broad discretion as to who gets a license. They claim not to be using it yet, but there is nothing in their interpretation of the law to stop them (aside, perhaps, from a desire to stay on good behavior while establishing favorable court precedents). These effects are hardly negligible, whatever you think of them. [*]: Eric Raymond, in a recent essay, has claimed that we're getting this backwards, and that the player cartel actually came first, though they're laying low for now. And heck, CSS did come from (IIRC) Matsushita. Note also the byline for that "content protection architecture" memo which we found on the DVDCCA web site: Intel, IBM, Matsushita, and Toshiba. Four technology companies, no one from the "copyright industries". > Why this isn't counter to congressional intent: Before going into these claims in detail, I'll notice that you've cited no quotations from the Congressional record in support of the positions that you've imputed to Congress. Which is fine; the plaintiffs aren't about to start quoting "Persons may ... choose to implement a technical measure ... without consulting interested parties" anytime soon. But let's do remember we have that stuff available. > Congress was concerned with banning illegitimate devices > like DeCSS. DeCSS has no other use than to circumvent the > CSS access control, as described above. Neither does speed ripper, but as Jim Taylor has pointed out, that can't be banned on the studios' interpretation of the law because it isn't doing its own CSS descrambling. If that was indeed what Congress was after, with the access control provisions of the law (as opposed to maybe 1201(b)), well, they sure chose a strange way of doing it. But, failing that, their lawyers could surely have come up with *some* rationale for a lawsuit; they've had quite some time, as those things have been available much longer than DeCSS. But no --- we have three DeCSS lawsuits, in three states, and not one for tools which are more convenient to use for illicit copying, which have been around far longer. Whatever's bugging them about DeCSS, copying ain't it. > In fact, DeCSS > has a "copy" button, so it has an obvious, infringing > use and no apparent non-infringing, or non-circumvention > use. The Linux arguments are a red herring [ouch!], for > two reasons: Leaving aside the lingering question of whether CSS is properly called access control, Ravi knows the answer to this as well as we all do: DeCSS was meant as a testbed for routines that were ultimately to be used elsewhere, and the MPEG data was dumped off to disk because there wasn't *yet* any other convenient place to put it, in the same way that it was done for Windows as a stopgap because Linux UDF support wasn't there yet. (See Johansen's testimony). But to an unsympathetic judge, that might seem kind of weak; alternative wording? > The Linux arguments are a red herring [ouch!], for > two reasons: > > 1) Congress banned cable descramblers. No one has seriously > argued that it is OK to build descramblers because someone > might later add an NTSC -> PAL converter to the descrambler > making it possible for Europeans who move to the US to keep > their PAL TVs, even if they want cable. Note once again that the only purpose of a cable descrambler is to allow people to get at content which they haven't paid for. But Johansen's purpose in writing DeCSS was to be able to access the movies on DVDs which he *had* paid for, in a manner which he found convenient. If he just wanted to make digital copies, he could have used one of the already available DVD-ripper programs; he testified at the trial that he examined them, and found that they were unsuitable for his needs *because you can't use them to build your own player*; they parasitize the output of a licensed one. > 2) CSS-licensed Linux players are in development. Anyone > interested in legitimately viewing a DVD should be willing > to wait for a licensed CSS implementation, so those not > willing to wait must be after something else. Why should anyone be willing to wait? Why should anyone have to wait? Why is it illegitimate to want to view DVDs using the computing environment of one's choice? What public purpose is served by erecting arbitrary statutory barriers? For cable descramblers, there is an obvious answer: you haven't paid for the program. But for DVDs? > Why this isn't anti-competitive: No one is required to > include CSS in a DVD player. DVD players can be build > that do not play CSS-encrypted disks, and for various > reasons a number of DVDs are non CSS-encrypted. The > fact that many movies are CSS-encrypted only demonstrates > that Toshiba and Matsushita developed a good access > control technology. Others are free to develop their > own access control technologies and, if they prove popular, > DVD players will incorporate them as well. Two points in response: 1) There are some DVDs which have no CSS scrambling, but quite few, and it is very difficult for a consumer to determine which. So, if a consumer bought a DVD player without CSS, they would know that it was overwhelmingly likely that it couldn't play any particular title, and would have no way of knowing whether any given disk is one of the rare exceptions. Who would buy such a device? No one. So, without a CSS license, which the movie studios claim arbitrary power to grant or deny, there is no access to the player market. 2) Manufacturers of CSS-licensed players are tightly bound by the CSS license. There is no guarantee that they would be allowed to implement any alternative protection scheme. (Note that the licenses are issued for limited terms; what is allowed in one year's license might well be forbidden in the next). > Why this isn't fraud: > > The only fraud here is claiming that DeCSS is anything > but a circumvention device. Consumers buy DVDs and play > them in DVD players. The only times there are problems > are when player or disk manufacturers make mistakes. If > such a problem is not resolved to a consumer's satisfaction, > they can pursue a claim against the appropriate party, and > these problems are accidental, so fraud is not an issue. Ummm... they've been accused of chicanery on this list, but that's not fraud in the legal sense, I don't believe. So, until I figure out what they're being accused of here, I'll deem this an adequate defense ;-). > > > I feel dirty after that, but I hope it helped. Well, ummm, likewise, or something. rst From dvd-discuss-owner@eon.law.harvard.edu Sun Aug 6 23:42:04 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA23147 for dvd-discuss-outgoing; Sun, 6 Aug 2000 23:42:04 -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 XAA23144 for ; Sun, 6 Aug 2000 23:42:03 -0400 Received: (from jfb@localhost) by emperor.hwrd1.md.home.com (8.9.3/8.9.3) id XAA06101; Sun, 6 Aug 2000 23:41:58 -0400 Date: Sun, 6 Aug 2000 23:41:58 -0400 From: Jim Bauer Message-Id: <200008070341.XAA06101@emperor.hwrd1.md.home.com> To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] the definition of 'Circumvention' Newsgroups: local.dvd-discuss In-Reply-To: <398E0278.D718F41D@mit.edu> References: <398DF38D.A3A9C0CB@mninter.net> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Ravi Nanavati wrote: >Chris Moseng wrote: >> I'm not saying I'm done talking about it, because I'm easily provoked; >> but unless you (or someone) provides solid reasoning behind the idea >> that 1201 permits extra-CSS authority determinations by explaining how >> it is not unconstitutional, counter to congressional intent, >> anti-competitive, and fraud, I'll have to keep repeating myself. This is >> the devil's advocate reasoning we need to see. > >I'll take a stab at it. > > >[snip] > >Why this isn't counter to congressional intent: > >Congress was concerned with banning illegitimate devices >like DeCSS. DeCSS has no other use than to circumvent the >CSS access control, as described above. In fact, DeCSS >has a "copy" button, so it has an obvious, infringing >use and no apparent non-infringing, or non-circumvention >use. The Linux arguments are a red herring [ouch!], for >two reasons: You seem to say copying is an infringment. I don't see how this can possibly be. Would not infringment only occur upon doing a certain specific set of acts with the copy. In other words, what you do with the copy determines if there is any infringment in your actions. >1) Congress banned cable descramblers. No one has seriously >argued that it is OK to build descramblers because someone >might later add an NTSC -> PAL converter to the descrambler >making it possible for Europeans who move to the US to keep >their PAL TVs, even if they want cable. Congress did? Why can't I buy a third party cable descrambler in lieu of renting one from my cable service providor? Those rental charges will become quite excessive over time. >[snip] > -- Jim Bauer, jfbauer@home.com From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 7 00:02:22 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA23632 for dvd-discuss-outgoing; Mon, 7 Aug 2000 00:02:22 -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 AAA23629 for ; Mon, 7 Aug 2000 00:02:18 -0400 Received: by waltz.rahul.net (Postfix, from userid 4001) id 5F5AB99C9F; Sun, 6 Aug 2000 21:02:12 -0700 (PDT) Received: from localhost (localhost [127.0.0.1]) by waltz.rahul.net (Postfix) with ESMTP id 40EB9938C0 for ; Sun, 6 Aug 2000 21:02:12 -0700 (PDT) Date: Sun, 6 Aug 2000 21:02:12 -0700 (PDT) From: Ken Arromdee To: dvd-discuss@eon.law.harvard.edu Subject: RE: [dvd-discuss] We've proved Reverse Engineering 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, 5 Aug 2000, Jim Taylor wrote: > >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 don't think so. Why would they be upset about a device that (if all the > righteous claims of "this is only to play legitimate DVDs on Linux" are > true) will lead to more sales of their discs? They fear one thing: copies of > their movies being distributed without them being paid. This is nonsense. What they fear is the production of unlicensed players. Because if it's found legal for Livid to make an unlicensed Linux player with a relatively small audience, for a computer which already has a DVD-ROM drive, it will *also* be legal for a *company* to make an unlicensed player from scratch. They won't be able to license out CSS or put restrictions such as region coding on licensees. The Livid player itself won't hurt them much, but the implications of people being allowed to produce players will. From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 7 00:01:36 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA23624 for dvd-discuss-outgoing; Mon, 7 Aug 2000 00:01:36 -0400 Received: from hotmail.com (f167.law9.hotmail.com [64.4.9.167]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id AAA23621 for ; Mon, 7 Aug 2000 00:01:34 -0400 Received: (qmail 9915 invoked by uid 0); 7 Aug 2000 04:00:54 -0000 Message-ID: <20000807040054.9914.qmail@hotmail.com> Received: from 38.38.24.156 by www.hotmail.com with HTTP; Sun, 06 Aug 2000 21:00:54 PDT X-Originating-IP: [38.38.24.156] From: "Harold Eaton" To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] I was wrong... Date: Mon, 07 Aug 2000 00:00:54 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 Ok, I'm relatively new to this list, and never saw an actual post where Jim described himself as Devil's advocate. I'm not looking to discuss with only those that agree with me, but even the Devil's advocate has to admit when he's wrong. I'll assume that's possible and continue nailing the coffin. Jim Taylor wrote: >With in this case can simply be taken to mean "having" (as in "with my >father's blessing, I struck out on my own"). The device has or does not >have >authority. The problem here is that the "having" comes AFTER the word "requires" but you want to beam it up Scotty! Well, ok captain: If congress had written 1201 (a) (3) (B) as: "a technological measure ''effectively controls access to a work'' if the measure HAS the authority of the copyright owner AND, in the ordinary course of its operation, requires the application of information, or a process or a treatment, to gain access to the work." That would be in complete accord with your interpretation and it would be a million times clearer to the rest of the world what it means. But I totally fail to see how the word "with" becomes "and" and ALSO transports the subsequent phrase in front of the word "requires". IMHO this changes the meaning considerably. Note also that I have added your word "has", effectively anthropomorphizing the device. This also would help to make clear that congress believes in devices acting IF they had written it that way. One wonders why they didn't. Now I expect that you'll want to refute this argument by saying I've created a straw-man construction which does NOT agree with your reading. If you wish to make this claim, then you are required to give an example of a TPM that meets one test but fails the other. (the real and fake 1201 (a) (3) (B) that is) Be careful! You won't want to break your existing interpretation of the statute. Perhaps instead you'll believe in the magic transport theory of the word "with", in which case, that's the end point of the argument. Good luck! ________________________________________________________________________ Get Your Private, Free E-mail from MSN Hotmail at http://www.hotmail.com From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 7 00:30:11 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA23792 for dvd-discuss-outgoing; Mon, 7 Aug 2000 00:30:11 -0400 Received: from hotmail.com (f225.law9.hotmail.com [64.4.9.225]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id AAA23789 for ; Mon, 7 Aug 2000 00:30:10 -0400 Received: (qmail 59640 invoked by uid 0); 7 Aug 2000 04:29:36 -0000 Message-ID: <20000807042936.59639.qmail@hotmail.com> Received: from 38.38.24.156 by www.hotmail.com with HTTP; Sun, 06 Aug 2000 21:29:36 PDT X-Originating-IP: [38.38.24.156] From: "Harold Eaton" To: dvd-discuss@eon.law.harvard.edu Subject: RE: [dvd-discuss] We've proved Reverse Engineering Date: Mon, 07 Aug 2000 00:29:36 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 Jim Taylor wrote: >This is completely incorrect. User operation control is a feature of the >DVD-Video application format. It has nothing at all to do with CSS. Player >manufacturers who fully support the DVD format license (not the CSS >license) >honor UOP restrictions such as those that force you to watch an ad. A >CSS-licensed player could add the feature to skip over ads (actually, a few >have) and not be in violation of the CSS license. Oh, so you know the content of the secret CSS license agreements. Please tell us more... So far you have told us that the CSS license doesn't have any requirements that a player "fully support the DVD format license." I guess if you're subject to NDA, you can tell us what's NOT in the license, but can't tell us what is in it. Do we get to play 2000 questions? I personally am ignorant about these issues, 'cause I haven't seen a CSS license agreement. It's just that I own a Panasonic DVD-A120, and I can't for the life of me imagine why Panasonic wouldn't sell a heck of a lot more players if they gave the users more functionality, since there is no cost or penalty for doing so (there is, in fact, a savings). Heck, they don't even own any movie studios. Can you name a player that I can buy that will let me skip the ads? I'd like to get one for when the MPAA finally loses this case and I can stop boycotting movies. ________________________________________________________________________ Get Your Private, Free E-mail from MSN Hotmail at http://www.hotmail.com From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 7 00:55:29 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA24053 for dvd-discuss-outgoing; Mon, 7 Aug 2000 00:55:29 -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 AAA24050 for ; Mon, 7 Aug 2000 00:55:12 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id BAA25491 for dvd-discuss@eon.law.harvard.edu; Mon, 7 Aug 2000 01:00:39 -0400 Date: Mon, 7 Aug 2000 01:00:34 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] the definition of 'Circumvention' Message-ID: <20000807010034.A25358@eldritchpress.org> References: <398DF38D.A3A9C0CB@mninter.net> <398E0278.D718F41D@mit.edu> <200008070341.XAA06101@emperor.hwrd1.md.home.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <200008070341.XAA06101@emperor.hwrd1.md.home.com>; from jfbauer@home.com on Sun, Aug 06, 2000 at 11:41:58PM -0400 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sun, Aug 06, 2000 at 11:41:58PM -0400, Jim Bauer wrote: > > > > > >[snip] > > > >Why this isn't counter to congressional intent: > > > >Congress was concerned with banning illegitimate devices > >like DeCSS. DeCSS has no other use than to circumvent the > >CSS access control, as described above. In fact, DeCSS > >has a "copy" button, so it has an obvious, infringing > >use and no apparent non-infringing, or non-circumvention > >use. The Linux arguments are a red herring [ouch!], for > >two reasons: > > You seem to say copying is an infringment. I don't see how this can > possibly be. Would not infringment only occur upon doing a certain > specific set of acts with the copy. In other words, what you do with > the copy determines if there is any infringment in your actions. I maintain that making one backup copy of a copyrighted work one has purchased is fair use, and that such copying is never an infringement. However, DMCA as interpreted by Jim Taylor is intended to prevent such fair use. I point to the legislative history which shows this is false. This is a matter now for the courts to decide. > >1) Congress banned cable descramblers. No one has seriously > >argued that it is OK to build descramblers because someone > >might later add an NTSC -> PAL converter to the descrambler > >making it possible for Europeans who move to the US to keep > >their PAL TVs, even if they want cable. > > Congress did? Why can't I buy a third party cable descrambler > in lieu of renting one from my cable service providor? Those > rental charges will become quite excessive over time. You can easily find plans for making your own cable tv descrambler, just as you can easily find code for DeCSS on the net. Congress has never banned publishing plans for cable tv descramblers, to my knowledge, nor supported some sort of cartel controlling licenses for descramblers. On the other hand, I believe General Instrument did patent some descrambling technology and that patent protection is one mechanism that is available to those who want to ban descrambling boxes for tv. But this shows that perpetual patents or copyright or other control are not likely to be something that Congress would or could pass. -- "Eric" Eric Eldred Eldritch Press mailto:Eldred@EldritchPress.org http://www.eldritchpress.org/EricEldred.vcf From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 7 01:10:02 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id BAA24209 for dvd-discuss-outgoing; Mon, 7 Aug 2000 01:10:02 -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 BAA24206 for ; Mon, 7 Aug 2000 01:10:01 -0400 Received: by waltz.rahul.net (Postfix, from userid 4001) id ED32099C81; Sun, 6 Aug 2000 22:09:56 -0700 (PDT) Received: from localhost (localhost [127.0.0.1]) by waltz.rahul.net (Postfix) with ESMTP id E58F4938C0 for ; Sun, 6 Aug 2000 22:09:56 -0700 (PDT) Date: Sun, 6 Aug 2000 22:09:56 -0700 (PDT) From: Ken Arromdee To: dvd-discuss@eon.law.harvard.edu Subject: RE: [dvd-discuss] We've proved Reverse Engineering In-Reply-To: <20000807042936.59639.qmail@hotmail.com> Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Mon, 7 Aug 2000, Harold Eaton wrote: > Can you name a player that I can buy that > will let me skip the ads? I'd like to get one for when the MPAA > finally loses this case and I can stop boycotting movies. The Apex. PBC OFF, PBC OFF, DVD DIGEST or TITLE immediately lets you get to the title screen even on disks with unskippable ads. (I have one with the loophole menu and have no idea if they removed this feature at the same time they took the loopholes out.) From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 7 08:14:33 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id IAA28481 for dvd-discuss-outgoing; Mon, 7 Aug 2000 08:14:33 -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 IAA28478 for ; Mon, 7 Aug 2000 08:14:31 -0400 Received: from naboo (user-2inib0s.dsl.mindspring.com [165.121.44.28]) by scaup.prod.itd.earthlink.net (8.9.3-EL_1_3/8.9.3) with ESMTP id FAA18754 for ; Mon, 7 Aug 2000 05:14:27 -0700 (PDT) From: "Jim Taylor" To: Subject: RE: [dvd-discuss] We've proved Reverse Engineering Date: Mon, 7 Aug 2000 05:14:07 -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 In-Reply-To: <20000807042936.59639.qmail@hotmail.com> Importance: Normal Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Harold Eaton, on Sunday, August 06, 2000 9:30 PM, wrote >Oh, so you know the content of the secret CSS license agreements. Parts of them. >Please tell us more... Uh, not a good idea. >It's just that I own >a Panasonic DVD-A120, and I can't for the life of me imagine why >Panasonic wouldn't sell a heck of a lot more players if they gave >the users more functionality, since there is no cost or penalty >for doing so (there is, in fact, a savings). That's a good question. I even have a good answer for it. The UOP controls help the disc author prevent the user from hanging himself. Programs on the disc may get fouled up if certain registers don't have values that they expect. If the user skips over sections before the commands in those sections can initialize registers, bad things could happen. The problem is that it's hard for the player to figure out when it's safe to ignore UOP controls and when it's not safe. >Can you name a player that I can buy that >will let me skip the ads? IIRC, and IIWCI (if I was correctly informed), some of the Raite models can skip FBI warnings and commercials. -- Jim Taylor Author of DVD Demystified and the DVD FAQ From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 7 11:38:49 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA00628 for dvd-discuss-outgoing; Mon, 7 Aug 2000 11:38:49 -0400 Received: from hotmail.com (f292.law9.hotmail.com [64.4.8.167]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id LAA00625 for ; Mon, 7 Aug 2000 11:38:48 -0400 Received: (qmail 91163 invoked by uid 0); 7 Aug 2000 15:39:16 -0000 Message-ID: <20000807153916.91162.qmail@hotmail.com> Received: from 128.244.34.133 by www.hotmail.com with HTTP; Mon, 07 Aug 2000 08:39:16 PDT X-Originating-IP: [128.244.34.133] From: "Harold Eaton" To: dvd-discuss@eon.law.harvard.edu Subject: RE: [dvd-discuss] We've proved Reverse Engineering Date: Mon, 07 Aug 2000 11:39:16 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: > >Oh, so you know the content of the secret CSS license agreements. > >Parts of them. Jim, if you only know "parts," then you can't honestly say the license DOESN'T require UOP controls - that could be in one of the "parts" that you don't know about. This means that your previous assertion was FALSE!!! Please admit that you are making FALSE statements in your arguments. ________________________________________________________________________ Get Your Private, Free E-mail from MSN Hotmail at http://www.hotmail.com From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 7 12:07:05 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA01393 for dvd-discuss-outgoing; Mon, 7 Aug 2000 12:07:05 -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 MAA01390 for ; Mon, 7 Aug 2000 12:07:02 -0400 Message-ID: <20000807160620.21962.qmail@web511.mail.yahoo.com> Received: from [131.44.121.4] by web511.mail.yahoo.com; Mon, 07 Aug 2000 09:06:20 PDT Date: Mon, 7 Aug 2000 09:06:20 -0700 (PDT) From: Bryan Taylor Subject: [dvd-discuss] Copyright Editorials To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-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 couple of interesting "big picture" editorials out today. Salon writes about the implications of software technology liability: http://salon.com/tech/feature/2000/08/07/yoink_napster/index.html osOpinion writes about the stresses on the Copyright system, generally: http://www.osopinion.com/Opinions/TomNadeau/TomNadeau48.html __________________________________________________ Do You Yahoo!? Kick off your party with Yahoo! Invites. http://invites.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 7 12:38:38 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA01844 for dvd-discuss-outgoing; Mon, 7 Aug 2000 12:38:38 -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 MAA01832 for ; Mon, 7 Aug 2000 12:38:36 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id ; Mon, 7 Aug 2000 09:38:55 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1DC5@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] DeCSS: No title keys, no describing, no (a)(2) Date: Mon, 7 Aug 2000 09:38:53 -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 To try to bring you up to speed, Dan. My assertion is that the keys on the disk do =not= denote "authority" to access the encrypted material, although they provide the means. "Authority" is a legal/metaphysical concept completely outside the bounds of the technological implementation. The dad/kid/keys was a strained analogy that was being tossed about, becoming more strained with each msgs. Basically: just because the kid has the keys doesn't mean he has the "authorization" to drive the car, although he has the ability. I'm not even sure I follow the latest twists ... cocaine? Is that supposed to represent a porn DVD? Can we send the DVDCCA to jail for providing the keys? ;-) -- -Richard M. Hartman hartman@onetouch.com 186,000 mi./sec ... not just a good idea, it's the LAW! > -----Original Message----- > From: Dan Steinberg [mailto:dstein@travel-net.com] > Sent: Saturday, August 05, 2000 5:49 AM > To: dvd-discuss@eon.law.harvard.edu > Subject: Re: [dvd-discuss] DeCSS: No title keys, no describing, no > (a)(2) > > > > > Chris Moseng wrote: > > > > Leland Ray wrote: > > > > > No, when Dad says "you can drive the car in xxx nights, and you > > > take the copy of the keys, that is a contract, and you have > > > agreed to it, and the keys are the consideration. > > Ummmmmmmmmmmmmmmmmm this is getting waaaaaaaaaaay off-topic AFAIK, but > it's Saturday morning and Im waiting for my coffee machine to reboot. > So I may as well jump in. 'keys are the onsideration'????? I think > not. Consideration is a major subject in contract law but to make a > long story short, in this instance it would be something junior-->dad > in exchange (or consideration) for the use of the car. One dollar is > commonly used although there is no need for it to be monetatary or > even some minimum amount. Since I believe there was a thread about > this a while ago, I exit lecture mode and go in search of coffee.... > > > > The rest of your argument is correct -- a creative work > > > protected by copyright is not a physical object and thus > > > the creator only has few rights after transfer of physical > > > possession. > > sorry I missed the original thread. transfer of phyiscal possesion of > what? of the creative work? of the rights? This sentence confuses me > so I would raise a modal dialog box and wait for it to be editied > before agreeing with it. > > > > Oral agreements granted, though since we are talking about > a minor as > > Richard pointed out, all bets are off. Me and the kid are > probably both > > going to Sing Sing if he smuggles cocaine across the border in it. > > -- > > 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 Aug 7 12:40:29 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA01937 for dvd-discuss-outgoing; Mon, 7 Aug 2000 12:40:29 -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 MAA01934 for ; Mon, 7 Aug 2000 12:40:28 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id ; Mon, 7 Aug 2000 09:40:46 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1DC6@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] DeCSS: No title keys, no descrambling, no (a)(2 ) Date: Mon, 7 Aug 2000 09:40:37 -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: Roy Murphy [mailto:murphy@panix.com] > Sent: Saturday, August 05, 2000 11:45 AM > To: dvd-discuss@eon.law.harvard.edu > Subject: Re: [dvd-discuss] DeCSS: No title keys, no descrambling, no > (a)(2 ) > > > Yea, verily on Fri, Aug 04, 2000 at 10:48:31AM -0700, > thus spake Richard Hartman: > > > From: Chris Moseng [mailto:moseng@mninter.net] > > > > > > You're right that it hasn't been established, but it > makes sense under > > > 1201, while anything else comes out as nonsense. WE can > establish it. > > > > How? Testimony is over. > > Kaplan has ruled that "authority" is a matter of law, not a matter of > fact. Alternative authority models can/will be addressed in > the briefs. > > One possible argument is: "CSS is not a section 1201 TPM because it is > not a process performed with the authority of the copyright holder. > The authority to descrable is, by the testimony of the plaintiffs, > granted by the DVD-CCA, not the copyright holder." > > The fact is they haven't (yet) described how their authority model > conforms to section 1201. > So there is still another phase of this thing coming up where they will be require to divulge this 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 Mon Aug 7 12:57:07 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA02211 for dvd-discuss-outgoing; Mon, 7 Aug 2000 12:57:07 -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 MAA02208 for ; Mon, 7 Aug 2000 12:57:06 -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 LAA28391 for ; Mon, 7 Aug 2000 11:57:03 -0500 (CDT) Message-ID: <398EEA29.15267CC2@uic.edu> Date: Mon, 07 Aug 2000 11:56:10 -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] We've proved Reverse Engineering Content-Type: text/plain; charset=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: > I don't think so. Why would they be upset about a device that (if all the > righteous claims of "this is only to play legitimate DVDs on Linux" are > true) will lead to more sales of their discs? They fear one thing: copies of > their movies being distributed without them being paid. If LiViD makes this > easier, then they won't like it. If LiViD actually took steps to protect DVD > content from being copied, you'd probably not hear a peep from the MPAA. But LiViD cannot take steps to protect DVD content from being copied. LiViD is open source. There is absolutely nothing stopping anyone from adding a "save as" button to the LiViD player. Furthermore, if LiViD is legal, then the version of LiViD with the "save as" button would probably also be legal, because the main purpose of the program would be to play DVDs, and the ability to save the data stream would be a secondary purpose. See 1201(b)(1)(A) and 1201(b)(1)(B). The only hope that the industry has of stopping this is to effectively kill LiViD. The only way to kill LiViD is to have the core technology -- the DeCSS algorithm -- outlawed, thus obtaining perpetual patent-like protection over a legitimately reverse-engineered, and widely disclosed trade secret. An amazing coup. Obviously a lot of people are going to learn lessons from this. If the DeCSS authors had the benefit of hindsight, It is very likely that they would not have released DeCSS as a standalone program, but instead only released it already integrated into a working player. The main effect of 1201 may prove to be that it forces software designers to "1201-proof" controversial features like DeCSS by providing not only the core functionality, but also, in effect, a "legal wrapper" around the core functionality to provide protection against 1201 circumvention charges. From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 7 13:19:08 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA02594 for dvd-discuss-outgoing; Mon, 7 Aug 2000 13:19:08 -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 NAA02590 for ; Mon, 7 Aug 2000 13:19:00 -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 MAA13795 for ; Mon, 7 Aug 2000 12:18:29 -0500 Message-ID: <398EF0FA.BBC498A4@mninter.net> Date: Mon, 07 Aug 2000 12:25:14 -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 (In the following, when I call a conclusion 'impossible,' please read "unconstitutional, counter to congressional intent, anti-competitive and fraudulent.") Jim Taylor wrote: > Possibly. But that's the position of the MPAA. You can't argue as > fact that implementations of CSS are equivalent based on one > interpretation of DMCA. The MPAA was largely responsible for much of > the language of 1201. They believe it lawfully upholds their > position. But I can argue, and have, that their reading is impossible, while mine is not. Saying that it is *their* argument does not make it a *possible* argument. We don't get anywhere. > You repeatedly go back to this "implementation" thing, but you leave > the implementations in a vacuum. 1201 talks about "use" and > "purpose." These must be considered as defining characteristics of an > implementation. Therefore, not all implementations are equal under > 1201. The use and purpose of a CSS implementation is to implement CSS--to provide access to a work according to the rules laid out by the technical protection measure. What happens after access is provided cannot be determined a part of the TPM because it results in impossible conclusions. So hit us with your best shot and tell me why it doesn't. If the judge determines that CSS encompasses the licensing restrictions on end-user use, I argue that CSS or 1201 must fall because the conclusion is impossible. > The analogy does little to illustrate the problem. You say your > sister was authorized. A copyright holder does not authorize people > to use CSS -- it authorizes devices (according to the MPAA). Anti-competitive. Counter to congressional intent. Fraudulent (see argument below)*. > To > rework the analogy, it would be like two versions of a door, each > with the same lock. One door only opens enough that you can look into > the house. You can't get in or take anything out. The other opens > fully. The lock (CSS) is the same. The doors (implementations) are > different. Copyright misuse. Unconstitutional. Fraudulent*. > DMCA does not limit its scope to the abstract application > of a TPM. It talks about devices, products, and services. And again, > it talks about use and purpose. If your mother authorizes the big > door on her house, but your father only authorizes the small door on\ > his house, then your sister can't change doors and claim that it's ok > because the locks are the same. Copyright misuse. Unconstitutional. Counter to congressional intent. Fraudulent. **Fraudulent, meaning when I bought a DVD I reasonably assumed I bought a big door, but the MPAA knew they decieved me into buying a small door. If I knew it was a small door when I bought it, I would have paid less or not bought it at all. This is my fraud argument in its simplest form. Maybe it goes by another name in the legal vernacular.** > To stretch the analogy, if she > changed the door on your father's house then she would be trafficking > in unauthorized devices. Unconstitutional. Anti competitive. Counter to congressional intent. Fraudulent. > There are many cases where the law allows market control when there > is a perceived benefit. Public utilities, private toll roads, and > CC&Rs in communities are but a few examples (which you might be able > to poke holes in, but the point is still valid). The government chose > to enact the DMCA to strengthen protections for copyright holders in > a digital environment where copying is so easy. It can be seen as an > extension to existing copyright law. How is that unconstitutional? If 1201 grants copyright holders control of a market that doesn't fall within their rights as a copyright holder, it is unconstitutional and anti-competitive. Natural monopolies are permitted to exist, under regulatory control mind you, because economies of scale dictate that it is most efficient economically for one firm to meet demand for their product in a market. Copyright is not a natural monopoly, and a monopolist can not use their market power in one market to hamper competition in another market. In this case, do not view the movie industry as an oligopoly, but as each copyright as a thin slice of regulated monopoly. Congress attempted to graft commerce powers onto copyright to help copyright holders defend their lawful regulated monopoly. I argue that 1201 can do this as long as authorization rests with the legitimately purchased key. As it has been argued, many many times, selling the key is selling authorization to access, and at the time of sale everyone agrees to the terms of authorization. Any other supposed "1201 authority model" I have seen exceeds constitutional bounds by giving each little regulated monopoly control over the market for players and dictate what the players can and cannot do with their work; repeat after me: they are unconstitutional, counter to congressional intent, and imply fraudulent sale of DVDs. > You can be sure that there were howls of protest about the > unconstitutionality of various copyright legislations over the years, > but most have been upheld. Patents and copyrights are > anti-competitive, but they are legal. The government set limits on > the terms of patent rights. They have changed them before. Why can't > the DMCA be yet another (indirect) change that allows perpetual > market control in certain cases? "But Mr. Chief Justice, all the other congresses got to violate the constitution!" What sort of argument is that? I'm saying again: show me how they are not impossible arguments. Telling me that they may succeed despite their impossibility doesn't convince me. Call me an idealist. I really want to move on in our debate over the legal right to implement, but until the MPAA's position is better known we may be at an impasse. How long before those briefs are public? -- moseng@mninter.net I use PGP 6.5.3 -- http://www.underwhelm.org/pgp From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 7 13:22:31 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA02728 for dvd-discuss-outgoing; Mon, 7 Aug 2000 13:22:31 -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 NAA02725 for ; Mon, 7 Aug 2000 13:22:28 -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 MAA14309 for ; Mon, 7 Aug 2000 12:21:50 -0500 Message-ID: <398EF1C2.1FC3B8E2@mninter.net> Date: Mon, 07 Aug 2000 12:28:34 -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] We've proved Reverse Engineering 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: > > Rippers do not circumvent. They sit at the other end of authorized > CSS devices and they copy the decrypted, decoded output. They do not > circumvent the access control provided by CSS. They are not covered > in the CSS licensing agreement (well, they are, in that the CSS > license says that a PC implementation does not have to protect the > signal after it is decrypted and decoded). But if, as I thought you were arguing, CSS entails what the "device" does with the data after accessing and decrypting, obviously adding the functionality to a device that permits saving the cleartext is circumventing. That functionality was not built into the CSS device, so adding it is circumvention. Or is CSS, now, just the access/decrypt part of the device? -- moseng@mninter.net I use PGP 6.5.3 -- http://www.underwhelm.org/pgp From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 7 14:27:29 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA04044 for dvd-discuss-outgoing; Mon, 7 Aug 2000 14:27:29 -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 OAA04041 for ; Mon, 7 Aug 2000 14:27:28 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id ; Mon, 7 Aug 2000 11:27:49 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1DC7@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] the definition of 'Circumvention' Date: Mon, 7 Aug 2000 11:27:41 -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 > -----Original Message----- > From: Jim Taylor [mailto:jtfrog@usa.net] > Sent: Saturday, August 05, 2000 5:48 PM > To: dvd-discuss@eon.law.harvard.edu > Subject: RE: [dvd-discuss] the definition of 'Circumvention' > > > Chris Moseng, on Wednesday, August 02, 2000 8:32 AM, wrote > > > >Jim Taylor wrote: > > > >> Ok. Is there a meaningful distinction? If a device has "purpose or > >> use" to circumvent, then it can circumvent. > > > >Guns don't kill people; people with guns kill people. > > DeCSS.exe doesn't circumvent; people with DeCSS.exe and > DivX;-) circumvent. > > Guns have uses other than killing people. Show that DeCSS.exe > has uses other > than circumventing and you've gotten somewhere. But don't > argue that because > a machine gun is just an implementation of a gun, it > therefore can't be > controlled or legislated differently than other guns. DeCSS > is not a player. > DeCSS does not protect works from being copied like licensed CSS > implementations do. So it isn't authorized. So it > circumvents. One can say > that all CSS implementations circumvent, but authorized > implementations are > legally allowed to do so by the DMCA. > > Chris from another thread: > > >The plaintiffs assert DeCSS is a device that has purpose of > >circumvention and that Corley trafficks it. Well, we can > hardly deny the > >latter, but if the device can't do the former by definition, > we've won a > >lawsuit. > > By definition? I just don't follow this "it's an > implementation so it can't > circumvent" argument. An implementation of what? Authorized players > implement CSS for playback. DeCSS.exe implements CSS for > copying files. Is > that circumvention? The plaintiffs claim it is. You can't > dismiss their > claim on a "definition" with no clear basis. In fact, they > probably claim > that DeCSS in an implementation of a circumvention device. DeCSS is not a player, you are correct. To use the gun analogy though, DeCSS is a barrel or a slide. It is a -component- with which a player can be made, and a vital component at that. Nomenclature I am using: DeCSS.EXE was a proof-of-concept application for DeCSS but DeCSS itself (sans .EXE) is the code for the decryption algorithm. The code is what can be reused elsewhere. -- -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 Aug 7 14:33:59 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA04706 for dvd-discuss-outgoing; Mon, 7 Aug 2000 14:33:59 -0400 Received: from mail2.onetouch.com (mail2.onetouch.com [205.180.182.6]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id OAA04703 for ; Mon, 7 Aug 2000 14:33:56 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id ; Mon, 7 Aug 2000 11:34:09 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1DC8@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] the definition of 'Circumvention' Date: Mon, 7 Aug 2000 11:34:06 -0700 MIME-Version: 1.0 X-Mailer: Internet Mail Service (5.5.2650.21) Content-Type: text/plain; charset="iso-8859-1" Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > -----Original Message----- > From: Jim Bauer [mailto:jfbauer@home.com] ... > Congress did? Why can't I buy a third party cable descrambler > in lieu of renting one from my cable service providor? Those > rental charges will become quite excessive over time. Actually, I belive you can. I'm sure I saw cable tuners on sale at Radio Shack ... I'll check the next time I am there. You still have to pay the cable company for the service, though. -- -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 Aug 7 14:42:33 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA05582 for dvd-discuss-outgoing; Mon, 7 Aug 2000 14:42:33 -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 OAA05579 for ; Mon, 7 Aug 2000 14:42:31 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id ; Mon, 7 Aug 2000 11:42:49 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1DC9@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] the definition of 'Circumvention' Date: Mon, 7 Aug 2000 11:42:44 -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: Chris Moseng [mailto:moseng@mninter.net] ... > > (In the following, when I call a conclusion 'impossible,' please read > "unconstitutional, counter to congressional intent, > anti-competitive and > fraudulent.") > > Jim Taylor wrote: > > > Possibly. But that's the position of the MPAA. You can't argue as > > fact that implementations of CSS are equivalent based on one > > interpretation of DMCA. The MPAA was largely responsible for much of > > the language of 1201. They believe it lawfully upholds their > > position. > > But I can argue, and have, that their reading is impossible, > while mine > is not. Saying that it is *their* argument does not make it a > *possible* > argument. We don't get anywhere. I primarily recally you asserting that "all implementations are equally valid by virtue of the fact that they are implementations" (a position that I don't belive is supportable, but that's a separate argument). I do -not- recall much refutation on the plaintiff's reading. Just "but this one is better". There are a number of -consequences- that come from the plaintiff's interpretation, among them the illegal tying issue and the grant of unexpiring control of IP. Is this what you mean when you say their reading is "impossible"? Because that again is a separate issue. What the law requires and the consequences thereof are different things. I am dealing (right now) solely with what the law requires. Their reading is -not- impossible in that sense unless you have other arguments to make. > > > You repeatedly go back to this "implementation" thing, but you leave > > the implementations in a vacuum. 1201 talks about "use" and > > "purpose." These must be considered as defining > characteristics of an > > implementation. Therefore, not all implementations are equal under > > 1201. > > The use and purpose of a CSS implementation is to implement CSS--to > provide access to a work according to the rules laid out by the > technical protection measure. What happens after access is provided > cannot be determined a part of the TPM because it results in > impossible > conclusions. So hit us with your best shot and tell me why it doesn't. > If the judge determines that CSS encompasses the licensing > restrictions > on end-user use, I argue that CSS or 1201 must fall because the > conclusion is impossible. It does not need to be argued whether CSS includes the licensing restrictions or not. Just based on two identical implementations. If one is "authorized" for use and the other is not they are NOT identical under the law. At least, not under this law. This is the basic point being made. "Authorization" is a legal/metaphysical status conveyed outside of the technical domain, and there is nothing in the law that requires more. -- -Richard M. Hartman hartman@onetouch.com 186,000 mi./sec ... not just a good idea, it's the LAW! From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 7 16:07:54 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA09830 for dvd-discuss-outgoing; Mon, 7 Aug 2000 16:07:54 -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 QAA09827 for ; Mon, 7 Aug 2000 16:07:41 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id QAA26051 for dvd-discuss@eon.law.harvard.edu; Mon, 7 Aug 2000 16:13:13 -0400 Date: Mon, 7 Aug 2000 16:13:08 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] fair use letter Message-ID: <20000807161308.A26046@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.nytimes.com/yr/mo/day/letters/l07dvd.html contains a letter to The New York Times: August 7, 2000 'Fair Use' Comes Home To the Editor: In "Free Speech Rights for Computer Code" (Business Day, July 31), the issue of fair use is discussed. Here is our fair-use problem: We have a TV with a built-in VCR. Recently we bought a DVD player for use with our TV. The TV won't work with the DVD player because of the copy-prevention feature. So we need another TV to watch our own DVD's. We don't want to do any copying, just watch. Aren't we being denied fair use of our DVD's? FRANK THIEMANN Sunnyvale, Calif., Aug. 1, 2000 -- "Eric" Eric Eldred Eldritch Press mailto:Eldred@EldritchPress.org http://www.eldritchpress.org/EricEldred.vcf From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 7 16:33:30 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA10781 for dvd-discuss-outgoing; Mon, 7 Aug 2000 16:33:30 -0400 Received: from mail2.onetouch.com (mail2.onetouch.com [205.180.182.6]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id QAA10778 for ; Mon, 7 Aug 2000 16:33:29 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id ; Mon, 7 Aug 2000 13:33:50 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1DCB@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] first amendment defense Date: Mon, 7 Aug 2000 13:33:41 -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 I am really beginning to dislike postings that appear to be total non-sequiter due to a lack of context... -- -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] ... > > There is an intermediate function, I agree. But its like the > intermediate > function when you buy an Estes Rocket. You can't launch it > immediately, you > have to build it first. The rocket isn't speech... > From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 7 17:06:47 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA11279 for dvd-discuss-outgoing; Mon, 7 Aug 2000 17:06:47 -0400 Received: from hotmail.com (f198.law9.hotmail.com [64.4.9.198]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id RAA11276 for ; Mon, 7 Aug 2000 17:06:46 -0400 Received: (qmail 27657 invoked by uid 0); 7 Aug 2000 21:06:13 -0000 Message-ID: <20000807210613.27656.qmail@hotmail.com> Received: from 128.244.34.133 by www.hotmail.com with HTTP; Mon, 07 Aug 2000 14:06:13 PDT X-Originating-IP: [128.244.34.133] From: "Harold Eaton" To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] the definition of "effectively controls access" Date: Mon, 07 Aug 2000 17:06:13 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 (and Richard Hartman has been concurring): >>Suppose instead of taking money when breaking in to the >>DVD-CCA, they steal the CSS technology instead and used it. >>(Perhaps there was a complete chipset implementing CSS) >>Now there is no contract, so there is no authority, and >>guess what - it gives access to works! >And guess what? The DVD CCA would claim that it is not >authorized access. Allow me to write a very precise, short sentence describing exactly what happened in the above example: The technological measure known as CSS, in the ordinary course of its operation, applied information, or a process, or a treatment WITHOUT the authority of the copyright owner to gain access to the work. Note the great parallelism between this sentence and 1201 (a) (3) (B). Now there are several choices here: (1) CSS does not effectively control access (2) the word "with" in 1201 (a) (3) (B) means "with or without" (3) the word "requires" in 1201 (a) (3) (B) means "may or may not use" (4) the words "gain access to the work" in 1201 (a) (3) (B) means "gain AUTHORIZED access to the work" (5) ?? other things too strange to imagine You have already denied (1), I think you lean towards (4), but there is no basis in the statute for this interpretation. This is another "magic transport" theory of the word "with". If they had meant (4), congress would have written 1201 (a) (3) (B): a technological measure ''effectively controls access to a work'' if, in the ordinary course of its operation, it requires the application of information, or a process, or a treatment to gain access that is authorized by the copyright owner to the work. The reason that they didn't write it this way is quite plain: virtually everything would ''effectively controls access to a work.'' e.g. a motor and spindle that spins a DVD disc. Spinning is a technological process that is required to gain access to the work. There could be authorized spinning and unauthorized spinning. Another simple example: demodulation is a technological process that is required to view (gain access to) a broadcast television image. Syncronization is a treatment that is required to gain access, etc. Under this reading, if NBC were to sign secret contracts with Zenith to "authorize" the TPM of demodulation in Zenith TVs then when 1201 (a) (1) (A) goes into effect, every television viewer in America who watches NBC without buying a new Zenith TV is committing a federal crime! Talk about filling up the jails! It won't affect the selling of other TV sets, since they have substantial non- infringing uses (such as watching CBS), but if you use them improperly for unauthorized viewing of NBC, you are a criminal. On the other hand, if all of the major networks formed a trust, they could control the market for television sets (at least those with tuners). If this reading is somehow correct, then DMCA must be thrown out for being over broad. ________________________________________________________________________ Get Your Private, Free E-mail from MSN Hotmail at http://www.hotmail.com From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 7 17:10:15 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA11655 for dvd-discuss-outgoing; Mon, 7 Aug 2000 17:10:15 -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 RAA11651 for ; Mon, 7 Aug 2000 17:10:11 -0400 Received: (from phil@localhost) by ramtop.demon.co.uk (8.9.3/8.9.3) id VAA02639 for dvd-discuss@eon.law.harvard.edu; Mon, 7 Aug 2000 21:55:31 +0100 Date: Mon, 7 Aug 2000 21:55:31 +0100 From: Phil Harrison To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] We've proved Reverse Engineering Message-ID: <20000807215531.A2618@ramtop.demon.co.uk> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <20000726152741.B12807@eldritchpress.org> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 0.95.6i In-Reply-To: ; from Jim Taylor on Sat, Aug 05, 2000 at 10:31:35PM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sat, Aug 05, 2000 at 10:31:35PM -0700, Jim Taylor wrote: > Eric Eldred, on Wednesday, July 26, 2000 12:28 PM, wrote > > > > > >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 don't think so. Why would they be upset about a device that (if all the > righteous claims of "this is only to play legitimate DVDs on Linux" are > true) will lead to more sales of their discs? My guess is that an open source unlicensed DVD player need not include region encoding, Macrovision and any other items that are required by the licensing terms for DVD player manufacturers. If unlicensed CSS descramblers are not stamped on, there is nothing to stop someone building a complete unlicensed DVD player. They fear one thing: copies of > their movies being distributed without them being paid. If LiViD makes this > easier, then they won't like it. If LiViD actually took steps to protect DVD > content from being copied, you'd probably not hear a peep from the MPAA. I > doubt even the DVD CCA would be terribly upset about missing out on a > license fee or two. > But being open source, there is nothing to stop someone else using the descrambling code from the LiViD player and using it in a player that does not include any copy restrictions. -- Phil Harrison From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 7 17:28:06 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA13072 for dvd-discuss-outgoing; Mon, 7 Aug 2000 17:28:06 -0400 Received: from web6402.mail.yahoo.com (web6402.mail.yahoo.com [128.11.22.150]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id RAA13069 for ; Mon, 7 Aug 2000 17:28:03 -0400 Message-ID: <20000807212756.16766.qmail@web6402.mail.yahoo.com> Received: from [207.1.61.98] by web6402.mail.yahoo.com; Mon, 07 Aug 2000 14:27:56 PDT Date: Mon, 7 Aug 2000 14:27:56 -0700 (PDT) From: Pete Broule Subject: Re: [dvd-discuss] the definition of "effectively controls access" To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > Allow me to write a very precise, short sentence describing > exactly what happened in the above example: > > The technological measure known as CSS, in the ordinary course > of its operation, applied information, or a process, or a treatment > WITHOUT the authority of the copyright owner to gain access to > the work. More precisely: The technological measure known as CSS encryption, in the ordinary course of its operation, allowed one to gain access to the work through the application of information, or a process or a treatment WITHOUT the authority of the copyright owner. __________________________________________________ Do You Yahoo!? Kick off your party with Yahoo! Invites. http://invites.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 7 20:26:27 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA15792 for dvd-discuss-outgoing; Mon, 7 Aug 2000 20:26:27 -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 UAA15789 for ; Mon, 7 Aug 2000 20:26:26 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id ; Mon, 7 Aug 2000 17:26:48 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1DD1@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] the definition of 'Circumvention' Date: Mon, 7 Aug 2000 17:26:47 -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: Pete Broule [mailto:pbroule@yahoo.com] > > --- Richard Hartman wrote: > > > > > -----Original Message----- > > > From: Pete Broule [mailto:pbroule@yahoo.com] > > > Sent: Friday, August 04, 2000 12:28 PM > > > To: dvd-discuss@eon.law.harvard.edu > > > Subject: RE: [dvd-discuss] the definition of 'Circumvention' > > > > > > > > > > The thing is that it the law does not require that the > > > > technological measure requires the presence of authority. > > > > It only requires that the -application- of the measure > > > > be made "with authority". > > > > > > First off, I take it you interpret "with the authority of the > > > copyright > > > owner" as modifying "the application." Let's take it from here. > > > The law says "... the measure ... requires application ..., with > > the > > > authority of the copyright owner, to gain access to the work." > > > We could rewrite this as "... the measure ... requires ... the > > > authorized [by the copyright owner] application ..., to > gain access > > to > > > the work." The measure must require _authorized_ application. > > > If the measure doesn't care whether the application is authorized > > > or not, it follows that it does not require authorized > application. > > > (Assuming that unauthorized application is at all possible, > > > of course.) > > > > > > > > > > You completely lost me on this one ... > > > > Sorry, let me try again. > > The law says, that the measure effectively controls access to a work > if it requires "X" to gain access to the work. That "X" is "the > application of information, or a process or treatment, with the > authority of the copyright owner." How about X and Y where X is "the application of information, or a process or treatment" and Y is "with the authority of the copyright owner. Making them atomic as X makes it impossible to make my point. > > If you want to prove that a measure qualifies as an effective access > control, you need to show that it indeed requires "X." A weaker > requirement is not enough. requires X with Y. > > Consider this: "A good guard is one that only lets in burglars with > reference letters from previous victims." According to this, a guard > cannot expect to be called good if he only lets in burglars, but does > not check for reference letters, or if he only lets in burglars with > reference letters, but accepts reference letters from police, not > just from previous victims. > Nothing in the law says that the TPM must -check- for authorization. Only that the process (or the application thereof) -have- authorization. A legal issue, not a technical 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 Mon Aug 7 20:39:23 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA15968 for dvd-discuss-outgoing; Mon, 7 Aug 2000 20:39:23 -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 UAA15965 for ; Mon, 7 Aug 2000 20:39:22 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id ; Mon, 7 Aug 2000 17:39:44 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1DD2@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] the definition of 'Circumvention' Date: Mon, 7 Aug 2000 17:39:43 -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 > -----Original Message----- > From: Chris Moseng [mailto:moseng@mninter.net] ... > > Richard Hartman wrote: > > > I do not believe that a book cover qualifies as a technical > > protection measure. If it is my diary, which has a lock > > on the cover (but is very easy to pick), then yes. > > Well, I'm not sure I see how opening a book (process) without the > authority of the copyright owner is any different than > implementing CSS > (process) without the authority of the copyright owner is any > different > in your reading. As you've said, the encryption doesn't have > anything to > do with authority, just access. Like a book cover. With a strict reading, you are correct. As long as somebody makes the assertion that the cover is intended to be a TPM. To the layman it is obvious that no protection is being provided. However, a book cover with no lock would plainly be seen as providing no protection. The problem here is that encryption is a magic word to legislators and laywers. They don't know anything about the process so at the mere invocation of the magic word they say "well, that must mean something" and go on to the next step. If there is encryption, the data must be being protected. The fact that the keys to the encryption are right there next to the lock goes unchallenged due to a lack of technical expertise. To the layman the ciphertext -looks- protected, therefore it must be a protection mechanism. > > Unfortunately I believe that the plaintiff's reading of > > the law is not completely unsupportable. Insufferable > > and just plain -bad- ... but a legitimate reading of > > the law as written. > > And here, I think, is the crux of our disagreement. You think that the > plaintiff's reading of the law is set in stone and somehow > supportable. > I disagree. August 8th is the deadline for legal briefs in this case. > NOW is when the defense can assert an interpretation of the law that > makes sense with the evidence presented in the trial. The plaintiffs > will assert theirs, and we will assert ours. Battling assertions. Great. But that only goes so far. More even than asserting our own reading we must be ready to challenge theirs. > If authority is not in evidence in the trial, then there is nothing > stopping us from asserting the law as it was meant: allowing > implementations without industry vetting. Unfortunately I believe that authority was being taken as a given since the line of questioning meant to establish the authority model was cut off. >Access control measures that > assess authority. There is certainly no evidence that DeCSS is not an > implementation, so if this is asserted as a legal argument and > ultimately affirmed, the plaintiffs have failed to meet their > burden of > proof otherwise. Now you keep repeating "CSS is an implementation" as if that was some magic phrase that made things all right. What is or is not an implementation of something is a -technical- issue, not a -legal- one. You can have two identical implementations and one of them may be authorized for use and the other not. Authorization is a -legal- issue, not a -technical- one. >This is a 1201 defense to a 1201 charge. On the other > hand, if we miss the clear opportunity to assert the position > that DeCSS > is legal, even under 1201, we're tossing away a winning hand. And allowing a flawed law to stick around and bite us in the ass later. > Particularly if 1201 is ultimately upheld. If it isn't made clear why > DeCSS should be allowed, it will be a challenge to overturn 1201 just > because it outlawed one program with no 1201 defense on record! > > So I guess we see the role of this phase of the trial > differently. I see > the question of implementation under 1201 one of law, not of fact; and > the time to pursue the issue is at hand, not past. We don't NEED > authority to be well defined by the plaintiffs, we are in a > position to > assert that 1201 defines it for them and they have to like it or lump > it. If I follow what you are saying, you are correct. One part of 1201 states that it is not intended to supercede fair use and other exceptions to copyright restrictions. In short: some copying is "authorized" under the law. The problem is the phrasing of the authorization requirement for the TPM. It does not stop at saying "authorized" but specifies "authorized by the copyright holder". Implicitly this -excludes- authorization by any other source (such as fair use exceptions). If this can be read out of existance, that solves the problem. >The constitutional and rational reading trumps the > unconstitutional > and irrational one. If the reading is ambiguous, yes. But I do not belive that the unconstitutional reading is ambiguous. Therefore the law itself must be altered to come in line w/ the proper interpretation. >Implementations must be found legal or the judge > will damn the entire law for its implications. The "implementation" thing again. I -really- think that this is a blind alley. Even if there is some merit to the argument from a technical sense (and I am not even convinced of that) I believe that explaining what you mean is so difficult so as to be counterproductive. >Explain that > to him, and > he will be hard pressed to find for the plaintiffs. Kaplan > wants 1201 to > survive his brush with it, even if it means narrowing its scope. He > wants to be right, not overturned. -- -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 Aug 7 20:49:54 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA16469 for dvd-discuss-outgoing; Mon, 7 Aug 2000 20:49:54 -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 UAA16466 for ; Mon, 7 Aug 2000 20:49:53 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id ; Mon, 7 Aug 2000 17:50:15 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1DD3@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] the definition of 'Circumvention' Date: Mon, 7 Aug 2000 17:50:14 -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: Harold Eaton [mailto:haceaton@hotmail.com] ... > > > Richard Hartman writes: > >Granted. But it is an implementation created "without the > >authority of the copyright owner", and therein lies the issue. > >Going into the technical details of the implementation such > >as title keys is irrelevant beyond this point. > > One last attempt to beat this dead horse: > > 1201 (a) (3) (B) says: > "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." > > Now let's make some substitions in order to make this a bit easier: > > "technological measure" = TPM > "effectively controls access to a work" = qualifies > "in the ordinary course of its operation" = "" > "the application of information, or a process or a treatment" = X > "the authority of the copyright owner" = Y > "gain access to the work" = watch a movie > > I hope you can agree to these substitutions. With them we can write: > > A TPM qualifies if it REQUIRES X with Y to watch a movie. You've dropped the comma. A TPM qualifies if it REQUIRES X, with Y to watch a movie. > > Now here comes the hard part, the word "with" is quite a > tricky word with > many meanings. I think that the way it is used in the > statute it is most > reasonable to accept definition 5a in my Webster's dictionary: > > "with: 5a used as a function word to indicate combination, > accompaniment, presence, or addition > " I got to the store with (accompanied by) my friend. I eat my soup with (using) a spoon. In Russian there are two distinct words for these uses. I think "accompanied by" is the sense of the word used here. > > let me suggest another combination word that is weaker than "with" > as a substitution: > > "with" = and > > this changes the meaning slightly, allowing some things to > sneak in that > previously would have been excluded, but, I belive, retaining > everything > that worked with the word "with." Some examples: Not quite. And I do not believe it to be "weaker" in any sense. In the use to which you put it, it actually makes the clause stronger. And changes the parsing. > > peanut butter with jelly <> peanut butter and jelly. > (no longer implies mixing) > maxipad with wings <> maxipad and wings. > (perhaps the wings are no longer attached) > key with authority <> key and authority. > (the conveyance of authority may have shifted) A very important shift! > Note that the last example is actually a gift to your view point, > allowing the authority to not be tightly bound with the key, but > it still won't help you... Now we have: No gift. > A TPM qualifies if it REQUIRES X AND Y to watch a movie. restore the comma: A TPM qualifies if it REQUIRES X, and Y to watch a movie. Now the parsing with AND binds "X and Y" to requires (even with the comma). But the parsing with "with" can bind "with Y" to "qualifies" instead of "requires". > > I hope you can see that if a TPM lets you watch a movie > with X but not Y, it doesn't qualify. No. But if you watch the movie without Y, you break the law. > CSS doesn't qualify unless the authority is in the title key. > The technology does not REQUIRE Y to watch a movie otherwise. No, the technology does not, but the law does. > Let's give an example: ... > My point is that if CSS qualifies, then DeCSS is an implementation > and doesn't circumvent, otherwise CSS doesn't qualify as a TPM. Well, you may have a point that CSS does not qualify as a TPM under a "reasonable man" standard because no affirmative checks have been performed by the process. Unfortunatly the law still does not require them in it's definition of a TPM. It -should-, but does not. -- -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 Aug 7 21:21:20 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA16876 for dvd-discuss-outgoing; Mon, 7 Aug 2000 21:21:20 -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 VAA16873 for ; Mon, 7 Aug 2000 21:21:20 -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 VAA10266; Mon, 7 Aug 2000 21:21:18 -0400 (EDT) Message-ID: <398F60EC.27DDDA55@mit.edu> Date: Mon, 07 Aug 2000 21:22:52 -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] the definition of 'Circumvention' References: <5A8391CA2D9ED311AFAA080009D982B10B1DD3@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: Harold Eaton [mailto:haceaton@hotmail.com] > ... > > > > > > Richard Hartman writes: > > >Granted. But it is an implementation created "without the > > >authority of the copyright owner", and therein lies the issue. > > >Going into the technical details of the implementation such > > >as title keys is irrelevant beyond this point. > > > > One last attempt to beat this dead horse: > > > > 1201 (a) (3) (B) says: > > "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." > > > > Now let's make some substitions in order to make this a bit easier: > > > > "technological measure" = TPM > > "effectively controls access to a work" = qualifies > > "in the ordinary course of its operation" = "" > > "the application of information, or a process or a treatment" = X > > "the authority of the copyright owner" = Y > > "gain access to the work" = watch a movie > > > > I hope you can agree to these substitutions. With them we can write: > > > > A TPM qualifies if it REQUIRES X with Y to watch a movie. > > You've dropped the comma. > > A TPM qualifies if it REQUIRES X, with Y to watch a movie. > > > > > Now here comes the hard part, the word "with" is quite a > > tricky word with > > many meanings. I think that the way it is used in the > > statute it is most > > reasonable to accept definition 5a in my Webster's dictionary: > > > > "with: 5a used as a function word to indicate combination, > > accompaniment, presence, or addition > > " > > I got to the store with (accompanied by) my friend. > I eat my soup with (using) a spoon. > > In Russian there are two distinct words for these uses. > > I think "accompanied by" is the sense of the word used > here. > > > > > let me suggest another combination word that is weaker than "with" > > as a substitution: > > > > "with" = and > > > > this changes the meaning slightly, allowing some things to > > sneak in that > > previously would have been excluded, but, I belive, retaining > > everything > > that worked with the word "with." Some examples: > > Not quite. And I do not believe it to be "weaker" in > any sense. In the use to which you put it, it actually > makes the clause stronger. And changes the parsing. > > > > > peanut butter with jelly <> peanut butter and jelly. > > (no longer implies mixing) > > maxipad with wings <> maxipad and wings. > > (perhaps the wings are no longer attached) > > key with authority <> key and authority. > > (the conveyance of authority may have shifted) > > A very important shift! > > > Note that the last example is actually a gift to your view point, > > allowing the authority to not be tightly bound with the key, but > > it still won't help you... Now we have: > > No gift. > > > > A TPM qualifies if it REQUIRES X AND Y to watch a movie. > > restore the comma: > A TPM qualifies if it REQUIRES X, and Y to watch a movie. > > Now the parsing with AND binds "X and Y" to requires (even > with the comma). But the parsing with "with" can bind > "with Y" to "qualifies" instead of "requires". > > > > > I hope you can see that if a TPM lets you watch a movie > > with X but not Y, it doesn't qualify. > > No. But if you watch the movie without Y, you break the law. > > > CSS doesn't qualify unless the authority is in the title key. > > The technology does not REQUIRE Y to watch a movie otherwise. > > No, the technology does not, but the law does. > > > Let's give an example: > ... > > My point is that if CSS qualifies, then DeCSS is an implementation > > and doesn't circumvent, otherwise CSS doesn't qualify as a TPM. > > Well, you may have a point that CSS does not qualify > as a TPM under a "reasonable man" standard because no > affirmative checks have been performed by the process. > > Unfortunatly the law still does not require them in it's > definition of a TPM. It -should-, but does not. The phrase "with the authority of the copyright owner" must have some meaning. Leaving 1201(a)(3)(A) alone (so it is still a crime to descramble, decrypt, ... without the authority of the copyright owner), how does the meaning of the law change if "with the authority of the copyright owner" is deleted from 1201(a)(3)(B)? Under any reading with measure-external authority, I claim that deleting the phrase "with the authority of the copyright owner" from 1201(a)(3)(B) does not change the meaning of the law, so measure-external authority readings must be broken. Under a measure-external reading of the law, a copyright owner declares some process a TPM. Then the copyright owner declares some devices performing that process to be unauthorized. If those devices have no other commercially significant non-circumventing uses, they are banned. And performing the processing without authority is circumvention (whether or not a device that implements that process is banned) is circumvention. With the phrase "with the authority of the copyright owner" deleted from 1201(a)(3)(A), the effect is the same. Any process (MPEG decoding, CSS, MP3, whatever) is "effective access control." But nothing happens until the copyright owner declares specific performances of some process (a device) unauthorized. Then, if those devices have non-circumvention uses, they are not banned, otherwise they are. And, again, circumvention is when the copyright owner says it is. I don't think I've put this as clearly as I should have, but please look at the thought experiment I suggest. If authority can be external to the TPM then why is it in 1201(a)(3)(B) at all? - Ravi Nanavati From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 7 21:37:52 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA17143 for dvd-discuss-outgoing; Mon, 7 Aug 2000 21:37:52 -0400 Received: from hotmail.com (f114.law9.hotmail.com [64.4.9.114]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id VAA17140 for ; Mon, 7 Aug 2000 21:37:51 -0400 Received: (qmail 74545 invoked by uid 0); 8 Aug 2000 01:36:39 -0000 Message-ID: <20000808013639.74544.qmail@hotmail.com> Received: from 38.30.237.115 by www.hotmail.com with HTTP; Mon, 07 Aug 2000 18:36:39 PDT X-Originating-IP: [38.30.237.115] From: "Harold Eaton" To: dvd-discuss@eon.law.harvard.edu Subject: RE: [dvd-discuss] the definition of 'Circumvention' Date: Mon, 07 Aug 2000 21:36:39 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 Richard Hartman wrote > > A TPM qualifies if it REQUIRES X with Y to watch a movie. > >You've dropped the comma. > >A TPM qualifies if it REQUIRES X, with Y to watch a movie. And you dropped the other one! A TPM qualifies if it REQUIRES X, with Y, to watch a movie. Consider these sentences: Peanut butter, with Jelly, is tasty. Peanut butter is tasty, with Jelly. The first sentence clearly indicates that the combination of peanut butter and jelly is tasty. The second sentence says that peanut butter itself is tasty when jelly is present. The two are not equivalent, and the English language does not allow you to shift the phrase past the verb. ________________________________________________________________________ Get Your Private, Free E-mail from MSN Hotmail at http://www.hotmail.com From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 7 22:28:25 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA19295 for dvd-discuss-outgoing; Mon, 7 Aug 2000 22:28:25 -0400 Received: from web6403.mail.yahoo.com (web6403.mail.yahoo.com [128.11.22.151]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id WAA19292 for ; Mon, 7 Aug 2000 22:28:24 -0400 Message-ID: <20000808022552.20795.qmail@web6403.mail.yahoo.com> Received: from [24.128.190.210] by web6403.mail.yahoo.com; Mon, 07 Aug 2000 19:25:52 PDT Date: Mon, 7 Aug 2000 19:25:52 -0700 (PDT) From: Pete Broule Subject: RE: [dvd-discuss] the definition of 'Circumvention' To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-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 law says, that the measure effectively controls access to a > work > > if it requires "X" to gain access to the work. That "X" is "the > > application of information, or a process or treatment, with the > > authority of the copyright owner." > > How about X and Y where X is "the application of information, or > a process or treatment" and Y is "with the authority of the copyright > owner. > > Making them atomic as X makes it impossible to make my point. > I suppose you mean Y is "the authority of the copyright owner" ("with" stays outside). Perfectly fine with me. > > > > If you want to prove that a measure qualifies as an effective > access > > control, you need to show that it indeed requires "X." A weaker > > requirement is not enough. > > requires X with Y. Ok. > > > > > Consider this: "A good guard is one that only lets in burglars with > > reference letters from previous victims." According to this, a > guard > > cannot expect to be called good if he only lets in burglars, but > does > > not check for reference letters, or if he only lets in burglars > with > > reference letters, but accepts reference letters from police, not > > just from previous victims. > > > > Nothing in the law says that the TPM must -check- for > authorization. Only that the process (or the application > thereof) -have- authorization. A legal issue, not a > technical one. What you are saying now is, "the law doesn't say the TPM must check for Y, it only says that X must have Y." Strictly speaking, you're right that the law doesn't say the TPM must -check- for Y. But it does say the TPM must -require- X with Y. If a TPM requires X, but not necessarily X with Y, then it doesn't qualify as an effective access control. I don't think I even understand what you mean when you say that the law only says X must have Y. "Must" in what context? (My interpretation is that it is the X a TPM requires that must have Y, or else the TPM is not an effective access control, but you seem to disagree.) Are you saying that in addition to defining what an effective access control is, 1201(a)(3)(B) creates a rule by which applications or processes should abide? If you believe that "with the authority of the copyright owner" is not part of what the TPM must require, can you rewrite 1201(a)(3)(B) so as to take it outside the "requires" clause? My parsing of 1201(a)(3)(B) is as follows: (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) ) ). (Hope I didn't miss any parens.) And how would you parse it? __________________________________________________ Do You Yahoo!? Kick off your party with Yahoo! Invites. http://invites.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 7 23:27:46 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA22724 for dvd-discuss-outgoing; Mon, 7 Aug 2000 23:27:46 -0400 Received: from mercury.clearway.com (c100.clearway.com [199.103.231.100]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id XAA22721 for ; Mon, 7 Aug 2000 23:27:45 -0400 Received: by c100.clearway.com with Internet Mail Service (5.5.2650.21) id ; Mon, 7 Aug 2000 23:31:29 -0400 Message-ID: From: Leland Ray To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] the definition of 'Circumvention' Date: Mon, 7 Aug 2000 23:31:24 -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 I would surmise that the "with the authority of the copyright owner" is to make certain that it is the copyright owner that is involved in creation of the process or the desire to make the work accessible via the process. Example: Say Sony wanted to put out a proprietary DVD format that would only work in their players, and arranged things somehow to produce "special Sony" DVDs. Suppose they also played all other kinds of DVDs also. The difference being that if you bought Sony you could play special Sony DVDs (which would be sold at a discount) or regular ones. 1201 clearly would not specially protect such an activity, but it would be legal. From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 8 00:39:29 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA25011 for dvd-discuss-outgoing; Tue, 8 Aug 2000 00:39:29 -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 AAA25008 for ; Tue, 8 Aug 2000 00:39:28 -0400 Received: by aero.org id <17098-4>; Mon, 7 Aug 2000 21:39:04 -0700 Received: from mhultra.aero.org(130.221.88.102) via SMTP by aero.org, id smtpdAAAa17325; Mon Aug 7 21:38:55 2000 Received: from lahub01-a3.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Mon, 7 Aug 2000 21:38:19 -0700 Subject: Re: [dvd-discuss] We've proved Reverse Engineering 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 08/07/2000 09:38:18 PM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Date: Mon, 7 Aug 2000 21:39:01 -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu GOOD POINT! The situation is that MPAA didn't miss the point. Copy protection didn't work because of the logistics and "volitility" of the computer market and machine configurations but control the machine and ... you can C O N T R O L Now they added a little legal twist (DMCA) on it. Russell Miller (James)@eon.law.harvard.edu on 08/06/2000 05:15:48 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: Re: [dvd-discuss] We've proved Reverse Engineering On Sun, 06 Aug 2000, you wrote: > many license agreements you wrap them in. There is a long, > long history of copy protection in the software industry. > It never worked. All it did was annoy legitimate customers > and amuse the pirates. Can the movie studios seriously > believe that they can solve a problem that stymied the best > efforts of the software industry for the better part > of a decade? > > - Ravi Nanavati The software industry did not buy a law to help them make it work. Doesn't mean they'll succeed - but that lesson wasn't lost on them. --james (Russell) -- Russell (James) 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 Aug 8 01:09:56 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id BAA25309 for dvd-discuss-outgoing; Tue, 8 Aug 2000 01:09:56 -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 BAA25306 for ; Tue, 8 Aug 2000 01:09:55 -0400 Received: by aero.org id <17102-1>; Mon, 7 Aug 2000 22:09:50 -0700 Received: from mhultra.aero.org(130.221.88.102) via SMTP by aero.org, id smtpdAAAa18698; Mon Aug 7 22:09:41 2000 Received: from lahub01-a3.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Mon, 7 Aug 2000 22:09:18 -0700 Subject: Re: [dvd-discuss] fair use 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 08/07/2000 10:09:17 PM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Date: Mon, 7 Aug 2000 22:09:48 -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu WONDERFUL! As someone who spent three years working as a teaching assistant well below the poverty level with no hope of welfare, social security, or even public health benefits the idea that I should go out an purchase several hundreds of dollars worth of new electronics PISSES ME OFF! [I state public health benefits because in 1981 I became a labor day weekend statistic in NJ. Accident. Drunk driver rammed me totaled my car. Front ended another car fleeing the scene of the accident Eric Eldred @eon.law.harvard.edu on 08/07/2000 01:09:41 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: [dvd-discuss] fair use letter http://www.nytimes.com/yr/mo/day/letters/l07dvd.html contains a letter to The New York Times: August 7, 2000 'Fair Use' Comes Home To the Editor: In "Free Speech Rights for Computer Code" (Business Day, July 31), the issue of fair use is discussed. Here is our fair-use problem: We have a TV with a built-in VCR. Recently we bought a DVD player for use with our TV. The TV won't work with the DVD player because of the copy-prevention feature. So we need another TV to watch our own DVD's. We don't want to do any copying, just watch. Aren't we being denied fair use of our DVD's? FRANK THIEMANN Sunnyvale, Calif., Aug. 1, 2000 -- "Eric" Eric Eldred Eldritch Press mailto:Eldred@EldritchPress.org http://www.eldritchpress.org/EricEldred.vcf From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 8 01:25:33 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id BAA25422 for dvd-discuss-outgoing; Tue, 8 Aug 2000 01:25:33 -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 BAA25419 for ; Tue, 8 Aug 2000 01:25:32 -0400 Received: by aero.org id <17095-2>; Mon, 7 Aug 2000 22:25:27 -0700 Received: from mhultra.aero.org(130.221.88.102) via SMTP by aero.org, id smtpdBAAa19364; Mon Aug 7 22:25:21 2000 Received: from lahub01-a3.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Mon, 7 Aug 2000 22:24:40 -0700 Subject: Re: [dvd-discuss] fair use 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 08/07/2000 10:24:39 PM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Date: Mon, 7 Aug 2000 22:25:22 -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu WONDERFUL! As someone who spent three years working as a teaching assistant well below the poverty level with no hope of welfare, social security, or even public health benefits the idea that I should go out an purchase several hundreds of dollars worth of new electronics PISSES ME OFF! I don't know about anyone else but this notion that I should throw out last years model of hitech electronc BS because they want to sell me this years model and the DMCA give them the opportunity really pisses me off. My inclination is that the approach to countering this should be economic and public...as in not buying the latest big release. Make a special point of seeing it inthe theatres and delay buying it for a few months. [My appologies on leaving this in part..My employer insists on using Bloatus Notus as email. By some unknown key sequence I accidently caused it to send email while I was composing it...stupid twits at BLOATUS. ] Eric Eldred @eon.law.harvard.edu on 08/07/2000 01:09:41 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: [dvd-discuss] fair use letter http://www.nytimes.com/yr/mo/day/letters/l07dvd.html contains a letter to The New York Times: August 7, 2000 'Fair Use' Comes Home To the Editor: In "Free Speech Rights for Computer Code" (Business Day, July 31), the issue of fair use is discussed. Here is our fair-use problem: We have a TV with a built-in VCR. Recently we bought a DVD player for use with our TV. The TV won't work with the DVD player because of the copy-prevention feature. So we need another TV to watch our own DVD's. We don't want to do any copying, just watch. Aren't we being denied fair use of our DVD's? FRANK THIEMANN Sunnyvale, Calif., Aug. 1, 2000 -- "Eric" Eric Eldred Eldritch Press mailto:Eldred@EldritchPress.org http://www.eldritchpress.org/EricEldred.vcf From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 8 02:40:56 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id CAA25732 for dvd-discuss-outgoing; Tue, 8 Aug 2000 02:40:56 -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 CAA25723 for ; Tue, 8 Aug 2000 02:40:55 -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 <0FYY00BV0NT3OQ@mta5.snfc21.pbi.net> for dvd-discuss@eon.law.harvard.edu; Mon, 7 Aug 2000 23:39:05 -0700 (PDT) Date: Tue, 08 Aug 2000 00:11:19 -0700 From: Paul Hsieh Subject: Re: [dvd-discuss] the definition of 'Circumvention' In-reply-to: <200008070243.WAA11449@soggy-fibers.ai.mit.edu> To: dvd-discuss@eon.law.harvard.edu Message-id: <0FYY00BV5NT3OQ@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: <398E0278.D718F41D@mit.edu> 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: > > Chris Moseng wrote: > > > I'm not saying I'm done talking about it, because I'm easily provoked; > > > but unless you (or someone) provides solid reasoning behind the idea > > > that 1201 permits extra-CSS authority determinations by explaining how > > > it is not unconstitutional, counter to congressional intent, > > > anti-competitive, and fraud, I'll have to keep repeating myself. This is > > > the devil's advocate reasoning we need to see. > > > > I'll take a stab at it. > > Nicely done. Some early points toward a refutation: > > > > > The best argument I can think of that enables what looks like > > extra-CSS authority is to assert that authority comes from > > the player key. DeCSS does not have an authorized player key > > it uses the Xing key, but no one authorized it to. This means > > that despite the fact that DeCSS and the Xing player are > > functionally equivalent, Xing is a CSS implementation because > > it had a licensed key (until recently) and DeCSS is a > > circumvention device because it didn't have a licensed key. > > FWIW, does anyone have an authoritative citation to the > revocation of the Xing player key? I've seen conflicting reports. DeCSS used an old Xing key. So in that sense it is a violation only in the sense that old Xing players are in violation. (I can see it now: "Upon usage of this currently legitimate DVD player it may become illegal on you without you knowing about it -- thus the customer should be aware that there is a chance that the FBI will come busting into your house to sieze your computer and will become an illegal access device".) > > Why this isn't unconstitutional: If CSS were used for anything > > other than encrypting movies on DVD released by the MPAA then > > DeCSS would have non-circumvention uses, and couldn't be banned. > > No one uses CSS for any other purpose, the same way no one > > scrambles video signals for any purpose other than controlling > > access to premium cable channels [1], so any use of DeCSS is > > circumvention. Actually the only uses of DeCSS that I know of are (1) to assist the Livid group to develop a DVD player, (2) Enable someone named "ViaoBoy" to create a crappy DivX from "Sleepless in Seatle" under contract from the MPAA, (3) As a excellent demoonstration of a poor security mechanism that has been reviewed by some cryptographers, and (4) As a form of freedom of expression practiced by some 500+ websites (including the DeCSS gallery by Dr. Touretzky.) The only case (known to me) of a single act of piracy was committed by the MPAA itself, while there have been numerous non-piracy acts that followed from the creation of DeCSS. > > [...] Congress certainly has the power to ban > > circumvention (and you're not going to get far arguing it doesn't > > since cable descrambler law is a lot older than the DMCA). > > Ravi's argument relies heavily on equating cable scrambling with CSS. > But the purposes of the two are fundamentally different. Cable > scrambling has the effect of keeping content away from people who have > not paid for it. On the explicit testimony of MPAA representatives, > that is not the effect, or intent, of CSS. What you say is true, but it doesn't support the fair use argument which I think is more important. > The point of CSS, as Marks stated at very great length in his > colloquy, is to keep digital movies away from *equipment* that does > not conform to standards dictated by the movie studios, for their own > commercial purposes (such as region coding, which secures enormous > markups for them on DVDs purchased in Europe and elsewhere, by > suppressing market forces which would otherwise come into play); also > by protecting advertising, and so forth. > > So, right away, we have the question as to whether this is the form of > protection that Congress meant to grant, and whether the LiViD player > is the sort of thing that they were referring to in their debates as a > "black box". Which is nonsense --- the LiViD player's functions are > outwardly indistinguishable from other commercial players sanctioned > by the studios (aside, perhaps, from a certain lack of polish). Well, the LiViD player is somewhat more functional than most in that (I expect) it ignores region codes. It also cannot have its key revoked. It probably allows you to fast forward past (or even skip) the FBI warning and trailers. :o) > > Banning circumvention devices helps prevent circumvention, > > but the constitutional question is whether Congress can > > grant the process monopoly that banning circumvention > > devices entails. Since DeCSS has no use other than to circumvent > > (which is already illegal), the additional property grant is > > negligible. Not established ... and this is important. (If it were, then I would agree that DeCSS is pretty much only a circumvention device.) > > [...] This negligible property grant is constitutional > > because it will help enable the smooth functioning of a market > > involving copyrighted works protected by access controls and > > Congress's belief, as expressed in the DMCA, is that such a > > market will promote the development and distribution of digital > > versions of copyrighted works (therefore "promoting the progress > > of science and the useful arts"). > > Consequences of the property grant include, so far, the aforementioned > mechanisms imposed on the players (region coding, ad-forcing), which > are clearly counter to the interests of consumers and the public, and > more of their ilk. There is also the strong potential for imposition > of a cartel on the manufacture of players[*]; the movie studios' > interpretation of the law allows them broad discretion as to who gets > a license. They claim not to be using it yet, but there is nothing in > their interpretation of the law to stop them (aside, perhaps, from a > desire to stay on good behavior while establishing favorable court > precedents). This is an excellent point. But it should be phrased that "even as an circumvention device, it serves the public good ...". Also it should probably be directly contrasted that the MPAA has their boogieman (people using DeCSS to pirate DVDs) just as the citizens of the US have their boogieman (the MPAA exercising overly burdomsome technological restrictions that go beyond what their basic copyright allows them.) Neither of these exist today, but there is no credible argument about the odds of either being created, and both represent roughly the same order of magnitude in terms of harm. > These effects are hardly negligible, whatever you think of them. > > [*]: Eric Raymond, in a recent essay, has claimed that we're > getting this backwards, and that the player cartel actually > came first, though they're laying low for now. And heck, > CSS did come from (IIRC) Matsushita. Note also the byline for > that "content protection architecture" memo which we found > on the DVDCCA web site: Intel, IBM, Matsushita, and Toshiba. > Four technology companies, no one from the "copyright > industries". > > > Why this isn't counter to congressional intent: > > Before going into these claims in detail, I'll notice that you've > cited no quotations from the Congressional record in support of the > positions that you've imputed to Congress. Which is fine; the > plaintiffs aren't about to start quoting "Persons may ... choose to > implement a technical measure ... without consulting interested > parties" anytime soon. But let's do remember we have that stuff > available. > > > Congress was concerned with banning illegitimate devices > > like DeCSS. DeCSS has no other use than to circumvent the > > CSS access control, as described above. > > Neither does speed ripper, When running DeCSS, in of itself it has no other use. However remember that in the trial there has been plenty of testimony to the effect that DeCSS has other uses. > [...] but as Jim Taylor has pointed out, that > can't be banned on the studios' interpretation of the law because it > isn't doing its own CSS descrambling. If that was indeed what > Congress was after, with the access control provisions of the law (as > opposed to maybe 1201(b)), well, they sure chose a strange way of > doing it. > > But, failing that, their lawyers could surely have come up with *some* > rationale for a lawsuit; they've had quite some time, as those things > have been available much longer than DeCSS. But no --- we have three > DeCSS lawsuits, in three states, and not one for tools which are more > convenient to use for illicit copying, which have been around far > longer. Whatever's bugging them about DeCSS, copying ain't it. > > > In fact, DeCSS > > has a "copy" button, so it has an obvious, infringing > > use and no apparent non-infringing, or non-circumvention > > use. Most operating systems have file copying capabilities, just as there exists many back up utilities that copy files. That in of itself has no ill effect on the MPAA or in any way challenges their copyright. It is only redistribution (piracy) that can harm the MPAA. > > The Linux arguments are a red herring [ouch!], for two reasons: > > Leaving aside the lingering question of whether CSS is properly called > access control, Ravi knows the answer to this as well as we all do: > DeCSS was meant as a testbed for routines that were ultimately to be > used elsewhere, and the MPEG data was dumped off to disk because there > wasn't *yet* any other convenient place to put it, in the same way > that it was done for Windows as a stopgap because Linux UDF support > wasn't there yet. (See Johansen's testimony). But to an > unsympathetic judge, that might seem kind of weak; alternative > wording? I don't think there is any need to reword. It seems fine as written. But you should add that that is only instance of an example of how it can be used. If someone is developing a DVD player for *any* operating system being able to strip off the CSS for a whole host of development purposes (compare performance and correctness of playing a DVD with and without the CSS encryption.) If a legitimate DVD player is seeking a licence from the DVD-CCA but are somehow being bogged down in some negotiations with them (or don't want to reveal their intent on developping a DVD player until the last possible moment) can start their work early by examining .VOB files with and without CSS encryption. > > The Linux arguments are a red herring [ouch!], for > > two reasons: > > > > 1) Congress banned cable descramblers. No one has seriously > > argued that it is OK to build descramblers because someone > > might later add an NTSC -> PAL converter to the descrambler > > making it possible for Europeans who move to the US to keep > > their PAL TVs, even if they want cable. Its not the same thing. The infringers in this case usually being an implementation and sell them in mass quantity to people who want to engage in illegal acquisition of content. The better analogy is someone posting the specifications for creating a circumvention device. That's not illegal (at least I don't think it is.) And again its useful for people who want to build and commercialize the creation of a TV set. > Note once again that the only purpose of a cable descrambler is to > allow people to get at content which they haven't paid for. But > Johansen's purpose in writing DeCSS was to be able to access the > movies on DVDs which he *had* paid for, in a manner which he found > convenient. > > If he just wanted to make digital copies, he could have used one of > the already available DVD-ripper programs; he testified at the trial > that he examined them, and found that they were unsuitable for his > needs *because you can't use them to build your own player*; they > parasitize the output of a licensed one. Right, but I think you need to add the point above to complete the argument. > > 2) CSS-licensed Linux players are in development. This is irrelevant. (1) The LiViD developers did not know this at the time, (2) The announcements made gave no credible time table, (3) Commercial software running on Linux in of itself is a serious problem since it is possible to build complete Linux systems with $0 software investment (more to the point: incremental cost per seat of a site licence is definately $0), (4) These companies may go out of business (a real possibility since software DVD player vendors are numerous, royalties for software are slim) in which case there is no guarantee of continued support for the player (5) There is no guarantee that these companies would maintain this product line (since because of reason #3, it may provide little or no revenue in which case it may make no business sense for these vendors to continue support for these players.) > > [...] Anyone > > interested in legitimately viewing a DVD should be willing > > to wait for a licensed CSS implementation, so those not > > willing to wait must be after something else. > > Why should anyone be willing to wait? Why should anyone have to wait? > Why is it illegitimate to want to view DVDs using the computing > environment of one's choice? What public purpose is served by > erecting arbitrary statutory barriers? > > For cable descramblers, there is an obvious answer: you haven't paid > for the program. But for DVDs? > > > Why this isn't anti-competitive: No one is required to > > include CSS in a DVD player. DVD players can be build > > that do not play CSS-encrypted disks, and for various > > reasons a number of DVDs are non CSS-encrypted. Only a very small handful of DVDs are know to have unencrypted content. Further, authoring in DVD is not something accessible to anyone without the MPAA/DVD-CCA's facilities so there is no serious way of even generating such content if so desired. Being at the mercy of the MPAA for the creation of unencrypted content is not acceptable to the citizens of the US. Therefore in the sense the DeCSS enables the creation of a DVD player for Linux (or any other platform whose restrictions are not satisfied by the currently available licenced players) served the public interest. > > [...] The > > fact that many movies are CSS-encrypted only demonstrates > > that Toshiba and Matsushita developed a good access > > control technology. It demonstrates nothing of the sort. It only demonstrates that content providers have, for whatever reason, decided to use CSS as a scrambling mechanism. There is no evidence that the MPAA employs *any single* cryptographer who is capable of assessing how good CSS is. (The burden of proof for this would clearly lie on the side of the plantiffs.) (It is my personal belief that the MPAA has no idea whether CSS is any good or not, nor are they in any position to even know who to call to make that sort of a determination.) > [...] Others are free to develop their > > own access control technologies and, if they prove popular, > > DVD players will incorporate them as well. Others don't necessarily have access to the content. > Two points in response: > > 1) There are some DVDs which have no CSS scrambling, but quite few, > and it is very difficult for a consumer to determine which. So, > if a consumer bought a DVD player without CSS, they would know that > it was overwhelmingly likely that it couldn't play any particular > title, and would have no way of knowing whether any given disk is > one of the rare exceptions. > > Who would buy such a device? No one. So, without a CSS license, > which the movie studios claim arbitrary power to grant or deny, > there is no access to the player market. > > 2) Manufacturers of CSS-licensed players are tightly bound by the CSS > license. There is no guarantee that they would be allowed to > implement any alternative protection scheme. (Note that the > licenses are issued for limited terms; what is allowed in one > year's license might well be forbidden in the next). While *we* don't officially know this, apparently a CSS contract was entered into the court proceedings. So whether or not this is true or not is know to Judge Kaplan and the lawyers in this case, however *we* don't really know that one way or another. > > Why this isn't fraud: > > > > The only fraud here is claiming that DeCSS is anything > > but a circumvention device. Consumers buy DVDs and play > > them in DVD players. The only times there are problems > > are when player or disk manufacturers make mistakes. Not so. If a DVD player is bundled with the system which becomes corrupted (because the OS is Windows 98 for example) but the video card company goes out of business (for example: Chromatic Research, S3, Number 9, TSENG labs, etc., etc) then there is no guarantee that that person can ever recover his hardware investment without a further upgrade -- *UNLESS* they decide to install Linux in which case the LiViD player is quite likely to work on a SVGA driver install. > > [...] If > > such a problem is not resolved to a consumer's satisfaction, > > they can pursue a claim against the appropriate party, and > > these problems are accidental, so fraud is not an issue. That's wholly unsatisfactory to the end consumer. If the end consumer can find an alternative solution to their problem (install Linux!) then that is more useful. > Ummm... they've been accused of chicanery on this list, but that's not > fraud in the legal sense, I don't believe. So, until I figure out > what they're being accused of here, I'll deem this an adequate defense > ;-). > > > > > > > I feel dirty after that, but I hope it helped. > > Well, ummm, likewise, or something. Well, I believe it helped. -- Paul Hsieh qed@pobox.com From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 8 02:40:56 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id CAA25728 for dvd-discuss-outgoing; Tue, 8 Aug 2000 02:40:56 -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 CAA25722 for ; Tue, 8 Aug 2000 02:40:54 -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 <0FYY00BV0NT3OQ@mta5.snfc21.pbi.net> for dvd-discuss@eon.law.harvard.edu; Mon, 7 Aug 2000 23:39:03 -0700 (PDT) Date: Tue, 08 Aug 2000 00:11:19 -0700 From: Paul Hsieh Subject: RE: [dvd-discuss] We've proved Reverse Engineering In-reply-to: <20000807042936.59639.qmail@hotmail.com> To: dvd-discuss@eon.law.harvard.edu Message-id: <0FYY00BV1NT3OQ@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 Harold Eaton: > Jim Taylor wrote: > >This is completely incorrect. User operation control is a feature of the > >DVD-Video application format. It has nothing at all to do with CSS. Player > >manufacturers who fully support the DVD format license (not the CSS > >license) > >honor UOP restrictions such as those that force you to watch an ad. A > >CSS-licensed player could add the feature to skip over ads (actually, a few > >have) and not be in violation of the CSS license. That's an interesting insider's comment. Are there any other license agreements that such player manufacturers are required to enter into on condition to being granted a CSS license? > Oh, so you know the content of the secret CSS license agreements. Please > tell us more... > So far you have told us that the CSS license doesn't have any > requirements that a player "fully support the DVD format license." > I guess if you're subject to NDA, you can tell us what's NOT > in the license, but can't tell us what is in it. Do we get to play > 2000 questions? > > I personally am ignorant about these issues, 'cause I haven't > seen a CSS license agreement. I've had only bits and pieces of it explained to me by implementors. > [...] It's just that I own > a Panasonic DVD-A120, and I can't for the life of me imagine why > Panasonic wouldn't sell a heck of a lot more players if they gave > the users more functionality, since there is no cost or penalty > for doing so (there is, in fact, a savings). Heck, they don't even > own any movie studios. Can you name a player that I can buy that > will let me skip the ads? I'd like to get one for when the MPAA > finally loses this case and I can stop boycotting movies. :o) -- Paul Hsieh qed@pobox.com From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 8 06:02:05 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id GAA28581 for dvd-discuss-outgoing; Tue, 8 Aug 2000 06:02:05 -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 GAA28578 for ; Tue, 8 Aug 2000 06:02:03 -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 FAA10373 for ; Tue, 8 Aug 2000 05:01:40 -0500 Message-ID: <398FDBE8.F5501A1C@mninter.net> Date: Tue, 08 Aug 2000 05:07:36 -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: <5A8391CA2D9ED311AFAA080009D982B10B1DD2@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: > With a strict reading, you are correct. As long as somebody > makes the assertion that the cover is intended to be a TPM. > To the layman it is obvious that no protection is being > provided. > > However, a book cover with no lock would plainly be seen as > providing no protection. The problem here is that encryption > is a magic word to legislators and laywers. They don't know > anything about the process so at the mere invocation of the > magic word they say "well, that must mean something" and go > on to the next step. Why put covers on books, if not to prevent people from seeing what's on the inside? Certainly, by the "generous" reading, the courts are at the mercy of the publisher who defines what mechanism is authorized to access. My hands? Your eyes? Whatever the publisher says, I'm afraid. Sure, it's only natural that page 2 follow page one, but why should that it is natural preclude the publisher from asserting it as an access control measure? That's sure not in the law. The law defines circumvention, in the "generous" reading, as performing, unauthorized, a process. > The fact that the keys to the encryption are right there > next to the lock goes unchallenged due to a lack of technical > expertise. To the layman the ciphertext -looks- protected, > therefore it must be a protection mechanism. And you were sold the keys with no limitations on their use, or suggestions that there would be. > Battling assertions. Great. But that only goes so far. More even > than asserting our own reading we must be ready to challenge theirs. Aren't we? Their assertions are... unconstitutional, counter to congressional intent, anti-competitive and entail fraud. What more do you want? I have yet to see an MPAA-position asserted that isn't two or more of those. So either someone comes up with some better possibilities, or we've come up with all the counter we need. > > If authority is not in evidence in the trial, then there is nothing > > stopping us from asserting the law as it was meant: allowing > > implementations without industry vetting. > > Unfortunately I believe that authority was being taken as a given > since the line of questioning meant to establish the authority > model was cut off. We shall see when the briefs are released. If it was a given, it obviously is grounds for appeal. I think it is a matter of law, meaning 1201 makes X authorization models possible, and is the MPAA's one of those? No need to argue about what will become clear shortly. > > Access control measures that > > assess authority. There is certainly no evidence that DeCSS is not > > an > > implementation, so if this is asserted as a legal argument and > > ultimately affirmed, the plaintiffs have failed to meet their > > burden of > > proof otherwise. > > Now you keep repeating "CSS is an implementation" as if > that was some magic phrase that made things all right. > What is or is not an implementation of something is a > -technical- issue, not a -legal- one. You can have two > identical implementations and one of them may be authorized > for use and the other not. Authorization is a -legal- > issue, not a -technical- one. Ummmmm. I assert that under 1201, implementations must be protected or the reading is... unconstitutional, counter to congressional intent and anti-competitive. I really need to put that stuff in a macro. That is why "DeCSS implements" is a 1201 defense to a 1201 charge. The plaintiffs must either then prove that DeCSS does not implement adequately or that implementations are not protected by 1201. Both, I think, unarguable. Especially because they failed to prevent evidence for the former in trial, so they are stuck with the latter. You disagree. Oh well. > >This is a 1201 defense to a 1201 charge. On the other > > hand, if we miss the clear opportunity to assert the position > > that DeCSS > > is legal, even under 1201, we're tossing away a winning hand. > > And allowing a flawed law to stick around and bite us in the ass later. If the law protects your alleged crime, you've got to use it as the umbrella. Otherwise you won't be given the opportunity to show how it was misapplied, and therefore needs to be reinterpreted or overruled. 1201 defenses come before constitutional ones. > If I follow what you are saying, you are correct. One part of 1201 > states that it is not intended to supercede fair use and other > exceptions to copyright restrictions. In short: some copying > is "authorized" under the law. The problem is the phrasing > of the authorization requirement for the TPM. It does not > stop at saying "authorized" but specifies "authorized by > the copyright holder". Implicitly this -excludes- authorization > by any other source (such as fair use exceptions). If this > can be read out of existance, that solves the problem. This is not my argument at all, but I don't necessarily disagree with you. The keys were sold without restriction. If they did not actually convey authority, the MPAA has a lot of 'splainin' to do, Lucy. > If the reading is ambiguous, yes. But I do not belive > that the unconstitutional reading is ambiguous. Therefore > the law itself must be altered to come in line w/ the > proper interpretation. Laws don't get altered as readily as interpretations do. > >Implementations must be found legal or the judge > > will damn the entire law for its implications. > > The "implementation" thing again. I -really- think > that this is a blind alley. Even if there is some merit > to the argument from a technical sense (and I am not even > convinced of that) I believe that explaining what you mean > is so difficult so as to be counterproductive. It hasn't appeared too difficult to a few people on the list. Maybe I'm not articulate enough to explain it to everyone. There's lots about your position that makes no sense to me, though, so I think it more likely that we are too entrenched to see the merits of each other's arguments. CSS implementations cannot circumvent CSS because that is a logical contradiction. We are defending the right to implement independent of the whim of the copyright holder, inline with congressional intent. If implementations are not read as protected by 1201, the implications will damn the law or CSS. -- moseng@mninter.net I use PGP 6.5.3 -- http://www.underwhelm.org/pgp From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 8 06:05:15 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id GAA28690 for dvd-discuss-outgoing; Tue, 8 Aug 2000 06:05:15 -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 GAA28687 for ; Tue, 8 Aug 2000 06:05:14 -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 FAA10502 for ; Tue, 8 Aug 2000 05:04:53 -0500 Message-ID: <398FDCA9.7B955A0D@mninter.net> Date: Tue, 08 Aug 2000 05:10:49 -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: <5A8391CA2D9ED311AFAA080009D982B10B1DD1@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: > Nothing in the law says that the TPM must -check- for > authorization. Only that the process (or the application > thereof) -have- authorization. A legal issue, not a > technical one. Big difference between your main and parenthetical claims, there. The application of the process may or may not be circumvention. The process itself can never be. That's a logical contradiction. Of course the process has authorization, or it wouldn't be the process. Or, that's my position, anyway. ;) -- moseng@mninter.net I use PGP 6.5.3 -- http://www.underwhelm.org/pgp From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 8 07:22:21 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id HAA28815 for dvd-discuss-outgoing; Tue, 8 Aug 2000 07:22:21 -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 HAA28812 for ; Tue, 8 Aug 2000 07:22:20 -0400 Received: from jy01 (user-2inig3d.dialup.mindspring.com [165.121.64.109]) by smtp6.mindspring.com (8.9.3/8.8.5) with SMTP id HAA04886 for ; Tue, 8 Aug 2000 07:22:18 -0400 (EDT) Message-Id: <200008081122.HAA04886@smtp6.mindspring.com> X-Sender: jya@pop.pipeline.com X-Mailer: QUALCOMM Windows Eudora Pro Version 4.0 Date: Tue, 08 Aug 2000 07:17:04 -0400 To: dvd-discuss@eon.law.harvard.edu From: John Young Subject: [dvd-discuss] DVD CCA CSS Docs In-Reply-To: <200008020641.CAB12477@tisch.mail.mindspring.net> References: <00080110154902.28633@www.rjmconsulting.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 If it hasn't been mentioned here Anonymous calls attention to the availability of the latest DVD CCA CSS license agreement and related docs, some of which are accessible after filling out an online form on the DVD CCA Web site, or, happily, all of them directly at these URLs: http://www.dvdcca.org/dvdcca/data/css/csslicense_10bc.pdf (104K) http://www.dvdcca.org/dvdcca/data/css/categories.pdf (19K) http://www.dvdcca.org/dvdcca/data/css/procedures_a.pdf (37K) http://www.dvdcca.org/dvdcca/data/css/procedures_b.pdf (37K) http://www.dvdcca.org/dvdcca/data/css/procedures_c.pdf (37K) If any disappear there's a Zipped package of all five at: http://cryptome.org/dvdcca-css.zip (215K) From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 8 08:17:06 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id IAA29821 for dvd-discuss-outgoing; Tue, 8 Aug 2000 08:17:06 -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 IAA29818 for ; Tue, 8 Aug 2000 08:17:05 -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 IAA14378 for ; Tue, 8 Aug 2000 08:17:04 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id IAA16591; Tue, 8 Aug 2000 08:17:03 -0400 (EDT) Date: Tue, 8 Aug 2000 08:17:03 -0400 (EDT) Message-Id: <200008081217.IAA16591@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: RE: [dvd-discuss] the definition of 'Circumvention' In-Reply-To: References: Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Leland Ray writes: > I would surmise that the "with the authority of the > copyright owner" is to make certain that it is the > copyright owner that is involved in creation of the process > or the desire to make the work accessible via the > process. So, you're surmising that Congress meant to allow copyright holders to impose their whims on the public, without notification. Could you explain how you reconcile this with their ringing praise of the Betamax decision? Remember, they were reading the law to be consistent with Betamax --- if not, they likely wouldn't have passed the law. > Example: Say Sony wanted to put out a proprietary > DVD format that would only work in their players, and > arranged things somehow to produce "special Sony" DVDs. > Suppose they also played all other kinds of DVDs also. The > difference being that if you bought Sony you could play > special Sony DVDs (which would be sold at a discount) > or regular ones. > > 1201 clearly would not specially protect such an activity, > but it would be legal. Boy, this is confusing, not least because Sony is the copyright holder in many movies. (They also own theaters. Hmmm... U.S. v. Paramount, anyone?) But, assuming that you meant to say "Matsushita", or some other manufacturer which doesn't have substantial copyright holdings, some arrangement with the copyright holders would still be needed in order to get DVDs produced in the variant format. In fact, that's pretty much what Matsushita did when they came up with CSS (they administered the arrangement themselves prior to the creation of the DVDCCA), and the MPAA is now in court claiming statutory protection for that arrangement. rst From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 8 10:09:55 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA00841 for dvd-discuss-outgoing; Tue, 8 Aug 2000 10:09:55 -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 KAA00838 for ; Tue, 8 Aug 2000 10:09:50 -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 KAA20325; Tue, 8 Aug 2000 10:09:43 -0400 (EDT) Message-ID: <39901503.98E814AD@mit.edu> Date: Tue, 08 Aug 2000 10:11:16 -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: [dvd-discuss] Cable scrambling and CSS Content-Type: text/plain; charset=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 many people misunderstood the point of my cable scrambler argument. Yes, cable descramblers allow people to get access to cable they didn't pay for, but, from the MPAA's position so do unlicensed CSS descramblers. What the MPAA is doing is charging a "two-part tariff", similar to what Disneyworld used to do. You pay one fee (buy a DVD player) to get entrance into the park, then you buy tickets (buy or rent DVD movies) to go on the rides (watch a DVD movie). In the case of Disneyworld, Disney found it more profitable to move closer to a single tariff on entry, but why is a two-part tariff not allowed? And, yes, the majority of the MPAA's tariff may be in the form of player restrictions (region coding, Macrovision, etc.), but what is wrong with that? DVD movies are their copyrighted works, and they are allowed to choose the terms on which they are relaeased to the public. - Ravi Nanavati From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 8 10:33:54 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA01047 for dvd-discuss-outgoing; Tue, 8 Aug 2000 10:33:54 -0400 Received: from bigbrother.net (root@w131.z208177180.chi-il.dsl.cnc.net [208.177.180.131]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id KAA01044 for ; Tue, 8 Aug 2000 10:33:53 -0400 Received: from localhost (sterno@localhost) by bigbrother.net (8.10.1/8.9.3) with ESMTP id e78EXmJ10839 for ; Tue, 8 Aug 2000 09:33:48 -0500 Date: Tue, 8 Aug 2000 09:33:48 -0500 (CDT) From: Steve Stearns To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Cable scrambling and CSS In-Reply-To: <39901503.98E814AD@mit.edu> Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, 8 Aug 2000, Ravi Nanavati wrote: > why is a two-part tariff not allowed? And, yes, > the majority of the MPAA's tariff may be in the > form of player restrictions (region coding, > Macrovision, etc.), but what is wrong with that? > DVD movies are their copyrighted works, and they > are allowed to choose the terms on which they > are relaeased to the public. To counter this argument, let's look at another example. Let's say that all of the car companies got together and formed a trade organization. They decided that as an organization that they would manufacture cars with a two tariff system. They put a special additive in their gasoline which is maintained under trade secret which there cars will not run without, then they sell this additive to gas stations at a premium. So, suddenly you have to buy the car and then you are paying an additional fee at the pump without realizing it. If you try to open a gas station without paying the fee to the gas companies you will be sued under violation of trade secret protection. This sort of situation would be rapidly broken up by anti-trust regulators if it was the automotive industry. So why is this any different in the context of movies? The only difference here is that the MPAA is arguing that they are preventing copying, which is their legal right. It is very clear however that they don't care about copying per se. There are many ways to copy a DVD without DeCSS that are not being touched by the MPAA. They are really defending their authority to control and extract money from the DVD player market. And one other point. If say Sony was the only operation behind all of this, I'd be more content to except the two tariff logic. The problem is that there is significant collusion going on between all of the movie companies under the umbrella of the MPAA. ---Steve From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 8 10:47:23 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA01286 for dvd-discuss-outgoing; Tue, 8 Aug 2000 10:47:23 -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 KAA01283 for ; Tue, 8 Aug 2000 10:47:22 -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 KAA22893 for ; Tue, 8 Aug 2000 10:47:23 -0400 Date: Tue, 8 Aug 2000 10:47:23 -0400 (EDT) From: Ole Craig To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Cable scrambling and CSS 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 08/08/00 at 09:33, 'twas brillig and Steve Stearns scrobe: [...] > The only difference here is that the MPAA is arguing that they are > preventing copying, which is their legal right. [...] Dammit, no it isn't! Preventing illegal *distribution* (i.e. resale) of copies is their legal right. They do not have a legal right to prevent the consumer from making an archival copy of a work s/he has bought from them. Question for Jim/Dana/whomever: Is every DVD title (so far created) still in print/available? 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 Tue Aug 8 12:04:34 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA02024 for dvd-discuss-outgoing; Tue, 8 Aug 2000 12:04:34 -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 MAA01914 for ; Tue, 8 Aug 2000 12:02:20 -0400 Message-ID: <20000808155753.28456.qmail@web511.mail.yahoo.com> Received: from [131.44.121.4] by web511.mail.yahoo.com; Tue, 08 Aug 2000 08:57:53 PDT Date: Tue, 8 Aug 2000 08:57:53 -0700 (PDT) From: Bryan Taylor Subject: [dvd-discuss] Copyright Office Comments Up To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-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 latest RFC comments are up. http://www.loc.gov/copyright/reports/studies/dmca/comments/ I haven't even read any yet. There were only 30 of them. __________________________________________________ Do You Yahoo!? Kick off your party with Yahoo! Invites. http://invites.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 8 12:20:01 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA02580 for dvd-discuss-outgoing; Tue, 8 Aug 2000 12:20:01 -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 MAA02577 for ; Tue, 8 Aug 2000 12:19:54 -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 LAA17269 for ; Tue, 8 Aug 2000 11:19:28 -0500 Message-ID: <3990345D.3607A5FC@mninter.net> Date: Tue, 08 Aug 2000 11:25:01 -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] Cable scrambling and CSS 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 know of a specific example that is not: One edition of Little Shop of Horrors. Use this database at dvdfile.com to search for DVDs by attribute, including discontinued or cancelled. There are a lot of them. http://www.dvdfile.com/databases/discdatabase/ -- moseng@mninter.net I use PGP 6.5.3 -- http://www.underwhelm.org/pgp Ole Craig wrote: > Question for Jim/Dana/whomever: Is every DVD title (so far created) > still in print/available? From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 8 12:28:21 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA03269 for dvd-discuss-outgoing; Tue, 8 Aug 2000 12:28:21 -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 MAA03265 for ; Tue, 8 Aug 2000 12:28:20 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id ; Tue, 8 Aug 2000 09:28:39 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1DDA@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] the definition of 'Circumvention' Date: Tue, 8 Aug 2000 09:28:38 -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: Chris Moseng [mailto:moseng@mninter.net] > Sent: Sunday, August 06, 2000 4:24 PM > To: dvd-discuss@eon.law.harvard.edu > Subject: Re: [dvd-discuss] the definition of 'Circumvention' > > > Jim Taylor wrote: > > > DeCSS.exe doesn't circumvent; people with DeCSS.exe and > DivX;-) circumvent. > > I'm exhausted of explaining how all implementations must have equal > status under 1201. If you don't understand my argument, please take > another look at > > http://eon.law.harvard.edu/archive/dvd-discuss/msg06119.html There is no argument on this issue here, you state that it is "by definition". > http://eon.law.harvard.edu/archive/dvd-discuss/msg06221.html Again you don't argue this, you assert it. The closest you come to my point is in the paragraph discussing transmission of authority outside the system. You then follow this with the proper conclusion "no CSS implementation is capable of distinguishing whether access is authorized or not". This is true. But the law does not require a check. You may be right that CSS is pretextual, but it is a sophisticated pretext and may not be easily pegged as such by a layman. Smoke and mirrors. > > Either authority is conveyed with the purchase of a key and no > implementations can ever be circumvention devices, or authority is > determined external to the system and every CSS implementation has the > same "primary use or purpose." Wrong. If authority is conveyed outside the system then the use or purpose is immaterial. Some are authorized and some are not. >They are functionally equavalent, after > all. Functually, shmunctually. They are not -legally- equivilant if one has the copyright owner's authorization and the other does not. >The implications of any other conclusion are well established on > this list as unconstitutional, anti-competitive and counter to > congressional intent. I'd add illogical and fraudulent. I'd even agree with you on most of those evaluations. Nonetheless those are what we are stuck with as the law is currently written. Those are what we have to argue against. > As I say, provide me a scenario where authorization is external to the > access control measure that is constitutional, not anti-competitive, > consistent with congresssional intent, and not fraudulent. Because my > reading is all of these. But your reading does not reflect the law as written. It may be what should have been written but it is not what is there. > Moving away for the analogy, we're talking about published, > copyrighted > works. With no contractual obligations on use restriction or access > restriction, But there is an access restriction, written into 1201. >just variously crippled software with equally functional > CSS implementations. CSS provides access, what happens after > that is out > of the copyright holders control. So if I find a CSS > implementation that > suits me better, I have the right to use it. You should, but you don't. Not as the law is written. > I'm not saying I'm done talking about it, because I'm easily provoked; > but unless you (or someone) provides solid reasoning behind the idea > that 1201 permits extra-CSS authority determinations by explaining how > it is not unconstitutional, counter to congressional intent, > anti-competitive, and fraud, I'll have to keep repeating > myself. I'm not saying the law is -correct-. Of COURSE the results are counter to congressional intent and unconstitutional. That is why it has to be overturned or changed! Don't try to make it sound like I think the law is -correct-, because I 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 Tue Aug 8 12:42:18 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA04342 for dvd-discuss-outgoing; Tue, 8 Aug 2000 12:42:18 -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 MAA04339 for ; Tue, 8 Aug 2000 12:42:17 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id ; Tue, 8 Aug 2000 09:42:37 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1DDB@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] the definition of "effectively controls access" Date: Tue, 8 Aug 2000 09:42:37 -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: Harold Eaton [mailto:haceaton@hotmail.com] > > Jim Taylor wrote (and Richard Hartman has been concurring): > > >>Suppose instead of taking money when breaking in to the > >>DVD-CCA, they steal the CSS technology instead and used it. > >>(Perhaps there was a complete chipset implementing CSS) > >>Now there is no contract, so there is no authority, and > >>guess what - it gives access to works! > > >And guess what? The DVD CCA would claim that it is not > >authorized access. > > Allow me to write a very precise, short sentence describing > exactly what happened in the above example: > > The technological measure known as CSS, in the ordinary course > of its operation, applied information, or a process, or a treatment > WITHOUT the authority of the copyright owner to gain access to > the work. > > Note the great parallelism between this sentence and > 1201 (a) (3) (B). > > Now there are several choices here: > > (1) CSS does not effectively control access Without an actual authority check in the system, this is true. But difficult I think to show to non-technical people due to the misunderstanding of "encryption" and what it does and does not do. We have to assume that Kaplan accepts that it (CSS) does "effectively control access". I think that much is already in the transcript. > (2) the word "with" in 1201 (a) (3) (B) means "with or without" ??? > (3) the word "requires" in 1201 (a) (3) (B) means "may or may not use" ??? > (4) the words "gain access to the work" in 1201 (a) (3) (B) means > "gain AUTHORIZED access to the work" Where are you getting these additional meanings? And how does "with" -ever- mean "with or without" or "require" means "may or may not use"??? > (5) ?? other things too strange to imagine Those were strange enough... > You have already denied (1), I think you lean towards (4), > but there is no basis in the statute for this interpretation. > This is another "magic transport" theory of the word "with". > If they had meant (4), congress would have written > 1201 (a) (3) (B): > > a technological measure ''effectively controls access to a work'' if, > in the ordinary course of its operation, it requires the application > of information, or a process, or a treatment to gain access that > is authorized by the copyright owner to the work. > > The reason that they didn't write it this way is quite plain: > virtually everything would ''effectively controls access to a work.'' > e.g. a motor and spindle that spins a DVD disc. Spinning is > a technological process that is required to gain access to > the work. I've made the similar argument a while ago on this list using a phonograph record and needle. Basically: you are correct. The physical mechanism of a DVD player (or laser disc, or CD, or phonograph, or audio tape, or video tape, or ...) -is- indeed a "process or treatment" which "must be applkied in the ordinary course of it's operation". Yes, the law is overbroad in this regard. So what's your point? I've never said this was a good law! That's -my- point! >There > could be authorized spinning and unauthorized spinning. Yes. Given that you must be authorized in order to apply the process or treatment, you could be liable on two counts of violation for creating an unauthorized player, one for the CSS decryption process and another for the bouncing-a-laser-off-the-disc process. Not to mention any other processes that may be involved. However, the MPAA hasn't gone so far as to claim that only certain lasers are authorized (implicitly making other lasers unauthorized) because that would be too simple to see through. CSS is an encryption mechanism. To many people "encryption" means "protection" at the surface level and they never look past that. The fact that the keys are welded into the locks in this system goes completely unnoticed and unremarked. IN FACT, this system provides no protection. But there is enough smoke and mirrors there to obscure the issue enough that a non-technical person would accept that there -is- protection and move on. Which is what Kaplan has done. However, I can not disagree with your point about the spinning disc and bouncing the lasers qualify as TPMs under 1201. I've made that point myself. 1201 is a BAD LAW. There is no good reading of it. > > If this reading is somehow correct, then DMCA must be thrown out for > being over broad. Yes. -- -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 Aug 8 12:46:47 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA04451 for dvd-discuss-outgoing; Tue, 8 Aug 2000 12:46:47 -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 MAA04448 for ; Tue, 8 Aug 2000 12:46:46 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id ; Tue, 8 Aug 2000 09:47:07 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1DDC@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] the definition of 'Circumvention' Date: Tue, 8 Aug 2000 09:47:06 -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 I started responding to this earlier and it accidently got sent w/ no additional text. Sorry. > -----Original Message----- > From: Ravi Nanavati [mailto:ravi_n@mit.edu] ... > > I'll take a stab at it. > > > The best argument I can think of that enables what looks like > extra-CSS authority is to assert that authority comes from > the player key. No. Extra-CSS authority exists entirely outside the technical realm. It is a legal concept, metaphysical in nature. Authorization is when they say "this is authorized" and there is -not- technical conveyance involved. -- -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 Aug 8 13:00:15 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA04542 for dvd-discuss-outgoing; Tue, 8 Aug 2000 13:00:15 -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 NAA04539 for ; Tue, 8 Aug 2000 13:00:13 -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 LAA22447 for ; Tue, 8 Aug 2000 11:59:51 -0500 Message-ID: <39903DCA.5306DA7@mninter.net> Date: Tue, 08 Aug 2000 12:05:14 -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: <5A8391CA2D9ED311AFAA080009D982B10B1DC8@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: > Actually, I belive you can. I'm sure I saw cable tuners > on sale at Radio Shack ... I'll check the next time I am > there. You still have to pay the cable company for the > service, though. My understanding: Cable converters are legal; cable descramblers are not. DeCSS is a cable converter. -- moseng@mninter.net I use PGP 6.5.3 -- http://www.underwhelm.org/pgp From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 8 13:01:15 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA04586 for dvd-discuss-outgoing; Tue, 8 Aug 2000 13:01:15 -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 NAA04571 for ; Tue, 8 Aug 2000 13:01:11 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id ; Tue, 8 Aug 2000 10:01:30 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1DDE@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] the definition of 'Circumvention' Date: Tue, 8 Aug 2000 10:01:30 -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: Ravi Nanavati [mailto:ravi_n@mit.edu] ... > The phrase "with the authority of the copyright owner" > must have some meaning. Leaving 1201(a)(3)(A) alone > (so it is still a crime to descramble, decrypt, ... > without the authority of the copyright owner), how does the > meaning of the law change if "with the authority of the > copyright owner" is deleted from 1201(a)(3)(B)? I don't know if it should be deleted or amended, but as-is it establishes that only one source of authorization for applying the process exists while other sources for authorization for the act of copying may exist (fair use, etc). Thus you are left with a conflict in that, while you have the authority to copy the material you do not have the authority to get to it in order to make that copy. (simple analogy: you may eat the apple but you may not open the refrigerator door to get to it) >Under any > reading with measure-external authority, I claim that > deleting the phrase "with the authority of the copyright > owner" from 1201(a)(3)(B) does not change the meaning > of the law, so measure-external authority readings must > be broken. If you delete the sole-sourceing of authority to apply the process you (may) implicitly allow any source of authorization that enables you to copy to also enable you to gain access by any means necessary. IANAL, so I don't know if this would work -- but it is certainly much more likely to work that way if left unsaid than if the sole-sourcing of authority remains intact. If you alter the phrase to explicitly state that any legitimate authorization to copy also grants authorization to access so that the copy may be made, then there is no conflict and the law is fixed. > Under a measure-external reading of the law, a copyright > owner declares some process a TPM. Then the copyright > owner declares some devices performing that process to > be unauthorized. If those devices have no other commercially > significant non-circumventing uses, they are banned. Correct. Now it can still be argued that DeCSS does have non-circumventing uses. But that's saving the falling cup while the house is falling down around you. We could qualify DeCSS with those arguments, but if the law is left standing we are still vulnerable to the abuses that remain inherant in it. > And performing the processing without authority is > circumvention (whether or not a device that implements > that process is banned) is circumvention. > > With the phrase "with the authority of the copyright > owner" deleted from 1201(a)(3)(A), the effect is the > same. Any process (MPEG decoding, CSS, MP3, whatever) > is "effective access control." Strictly speaking, even with the phrase in there any of those processes could be considered to be "effective access control". I mean, you can't even get a meaningful look at a GIF file without applying "a process or treatment". That is where another correction could be made. The law does not require that the "process or treatement" involved include an authorization check. To qualify as a TPM this should be an explicit function required of the "process or treatment" in order to qualify as a TPM. >But nothing happens > until the copyright owner declares specific performances > of some process (a device) unauthorized. Strictly speaking, I suppose that it's the inverse. Anything that is not explicitly authorized must be unauthorized. So if they didn't say that I could look at those GIFs using IE, it's "circumvention" ... but I doubt that things would be pursued at this level. Nonetheless, that is how it is written. That is why it is dangerous. >Then, if > those devices have non-circumvention uses, they are > not banned, otherwise they are. And, again, circumvention > is when the copyright owner says it is. Pretty much. Yep. > > I don't think I've put this as clearly as I should have, > but please look at the thought experiment I suggest. If > authority can be external to the TPM then why is it in > 1201(a)(3)(B) at all? So that circumvention can be anything the copyright owner says it is. That is the law they bought. -- -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 Aug 8 13:06:57 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA04861 for dvd-discuss-outgoing; Tue, 8 Aug 2000 13:06:57 -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 NAA04858 for ; Tue, 8 Aug 2000 13:06:55 -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 MAA23319 for ; Tue, 8 Aug 2000 12:06:29 -0500 Message-ID: <39903F55.11863094@mninter.net> Date: Tue, 08 Aug 2000 12:11:49 -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: <5A8391CA2D9ED311AFAA080009D982B10B1DDC@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: > > From: Ravi Nanavati [mailto:ravi_n@mit.edu] > ... > > > > I'll take a stab at it. > > > > > > The best argument I can think of that enables what looks like > > extra-CSS authority is to assert that authority comes from > > the player key. > > No. Extra-CSS authority exists entirely outside the technical > realm. It is a legal concept, metaphysical in nature. Authorization > is when they say "this is authorized" and there is -not- technical > conveyance involved. Do you agree that this obviously unconstitutional, anti-competitive and fradulent, or not? I can't tell any more. -- moseng@mninter.net I use PGP 6.5.3 -- http://www.underwhelm.org/pgp From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 8 13:06:53 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA04853 for dvd-discuss-outgoing; Tue, 8 Aug 2000 13:06:53 -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 NAA04850 for ; Tue, 8 Aug 2000 13:06:51 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id ; Tue, 8 Aug 2000 10:07:15 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1DDF@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] the definition of 'Circumvention' Date: Tue, 8 Aug 2000 10:07:14 -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: Harold Eaton [mailto:haceaton@hotmail.com] ... > > > Richard Hartman wrote > > > A TPM qualifies if it REQUIRES X with Y to watch a movie. > > > >You've dropped the comma. > > > >A TPM qualifies if it REQUIRES X, with Y to watch a movie. > > And you dropped the other one! Sorry ... this whole "sentance algebra" approach was one I did not handle well from beginning to end. > A TPM qualifies if it REQUIRES X, with Y, to watch a movie. > > Consider these sentences: > > Peanut butter, with Jelly, is tasty. > Peanut butter is tasty, with Jelly. > > The first sentence clearly indicates that the combination of > peanut butter and jelly is tasty. > > The second sentence says that peanut butter itself is tasty > when jelly is present. > > The two are not equivalent, and the English language does > not allow you to shift the phrase past the verb. > Ok and this is meant to apply to 1201 how? Show me the phrasings of 1201 with and without the shift you applied to the peanut butter ... I'm getting lost again the further we get away from the text of the law. I'm saying mainly that the "with authority of the copyright owner" attaches to the "application of the process or treatment". In other words it is not the process or treatment that requires the authorization (as input to the process, which would indicate that a check for same is also required). But it is the -application- that requires the authority. The act, not the treatment is what requires the authorization. -- -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 Aug 8 13:16:09 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA04959 for dvd-discuss-outgoing; Tue, 8 Aug 2000 13:16:09 -0400 Received: from mail2.onetouch.com (mail2.onetouch.com [205.180.182.6]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id NAA04956 for ; Tue, 8 Aug 2000 13:16:08 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id ; Tue, 8 Aug 2000 10:16:28 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1DE0@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] the definition of 'Circumvention' Date: Tue, 8 Aug 2000 10:16:28 -0700 MIME-Version: 1.0 X-Mailer: Internet Mail Service (5.5.2650.21) Content-Type: text/plain; charset="iso-8859-1" Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > -----Original Message----- > From: Pete Broule [mailto:pbroule@yahoo.com] > Sent: Monday, August 07, 2000 7:26 PM > To: dvd-discuss@eon.law.harvard.edu > Subject: RE: [dvd-discuss] the definition of 'Circumvention' > > > > > The law says, that the measure effectively controls access to a > > work > > > if it requires "X" to gain access to the work. That "X" is "the > > > application of information, or a process or treatment, with the > > > authority of the copyright owner." > > > > How about X and Y where X is "the application of information, or > > a process or treatment" and Y is "with the authority of the > copyright > > owner. > > > > Making them atomic as X makes it impossible to make my point. > > > I suppose you mean Y is "the authority of the copyright owner" > ("with" stays outside). Perfectly fine with me. > > > > > > > If you want to prove that a measure qualifies as an effective > > access > > > control, you need to show that it indeed requires "X." A weaker > > > requirement is not enough. > > > > requires X with Y. > Ok. > > > > > > > > > Consider this: "A good guard is one that only lets in > burglars with > > > reference letters from previous victims." According to this, a > > guard > > > cannot expect to be called good if he only lets in burglars, but > > does > > > not check for reference letters, or if he only lets in burglars > > with > > > reference letters, but accepts reference letters from police, not > > > just from previous victims. > > > > > > > Nothing in the law says that the TPM must -check- for > > authorization. Only that the process (or the application > > thereof) -have- authorization. A legal issue, not a > > technical one. > > What you are saying now is, "the law doesn't say the TPM must check > for Y, it only says that X must have Y." > Strictly speaking, you're right that the law doesn't say the TPM > must -check- for Y. But it does say the TPM must -require- X with Y. > If a TPM requires X, but not necessarily X with Y, then it doesn't > qualify as an effective access control. Actually the X is still to atomic. This whole sentance algebra thing threw me off. X is "information, process or treatment" Y is "authorization of the copyright holder" The sentance is (B) a TPM qualifies if [it] requires the application of X, with Y, to gain access to the work. It is not X (the process or treament) that requires Y. It is the application of X. The act of application is what requires authorization. (I'll just snip the rest of the response to my previous posting because I think I've said it clearer here...) > If you believe that "with the authority of the copyright owner" is not > part of what the TPM must require, can you rewrite 1201(a)(3)(B) so > as to take it outside the "requires" clause? > My parsing of 1201(a)(3)(B) is as follows: > (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) > ) > ). > > (Hope I didn't miss any parens.) > And how would you parse it? > lesse ... (can we just snip the "ordinary course" part for purposes of this discussion?) (a technological measure) (effectively controls access to a work) if (the measure) requires (the application of (information, or a process or treatment), with (the authorization of the copyright owner) ) I think the important parens are in the same place in my parsing as yours ... but that means that "with" binds to "application of". Requiring the authorization for the act of applying the process. The process itself does not require the authorization (i.e. as input for a check). -- -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 Aug 8 13:31:17 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA05114 for dvd-discuss-outgoing; Tue, 8 Aug 2000 13:31:17 -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 NAA05111 for ; Tue, 8 Aug 2000 13:31:15 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id ; Tue, 8 Aug 2000 10:31:37 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1DE1@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] the definition of 'Circumvention' Date: Tue, 8 Aug 2000 10:31:35 -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: Chris Moseng [mailto:moseng@mninter.net] > > Battling assertions. Great. But that only goes so far. More even > > than asserting our own reading we must be ready to challenge theirs. > > Aren't we? Their assertions are... unconstitutional, counter to > congressional intent, anti-competitive and entail fraud. What more do > you want? I agree. What I -don't- see, that you apparently do, is that there is a good reading of 1201. I believe that it is bad (contre congressional intent, unconstitutional, etc) and that it must be overturned or corrected. You seem to think that it can be salvaged as-is. What more do I want? I want it fixed explicitly, not by some forced interpretation that can be overturned by someone else interpreting it some other way. > > Ummmmm. I assert that under 1201, implementations must be protected or > the reading is... unconstitutional, counter to congressional > intent and > anti-competitive. I really need to put that stuff in a macro. Actually we agree on all of this. > That is why "DeCSS implements" is a 1201 defense to a 1201 charge. But this I still don't see . >The > plaintiffs must either then prove that DeCSS does not implement > adequately or that implementations are not protected by 1201. No. All they need to prove is that they did not authorize that particular implementation. Anti-competitive, contre constitutional intent, and unconstitutional as it may be, that is what we have -currently- to deal with. You keep trying to make it something else before it has been fixed. >Both, I > think, unarguable. Argued ;-) > > If the law protects your alleged crime, you've got to use it as the > umbrella. Otherwise you won't be given the opportunity to show how it > was misapplied, and therefore needs to be reinterpreted or overruled. > 1201 defenses come before constitutional ones. And I still don't buy "it's an implementation" as a 1201 defense as long as the "authorized by the copyright owner" phrasing is still in there. It sole-sources authorization for access to the exclusion of the other legitimate sources of authorization for copying. As I've said in other msgs, this results in a situation where you can eat the apple but you can not open the refrigerator. Nor can you invent a transporter to get the apple out because that would be "circumvention" of the refrigerator door. > > > If I follow what you are saying, you are correct. One part of 1201 > > states that it is not intended to supercede fair use and other > > exceptions to copyright restrictions. In short: some copying > > is "authorized" under the law. The problem is the phrasing > > of the authorization requirement for the TPM. It does not > > stop at saying "authorized" but specifies "authorized by > > the copyright holder". Implicitly this -excludes- authorization > > by any other source (such as fair use exceptions). If this > > can be read out of existance, that solves the problem. > > This is not my argument at all, but I don't necessarily disagree with > you. The keys were sold without restriction. If they did not actually > convey authority, the MPAA has a lot of 'splainin' to do, Lucy. Yeeessss .... > > > If the reading is ambiguous, yes. But I do not belive > > that the unconstitutional reading is ambiguous. Therefore > > the law itself must be altered to come in line w/ the > > proper interpretation. > > Laws don't get altered as readily as interpretations do. But interpretations can be re-interpreted. Better it be fixed. Especially if it is flawed, which it is in two ways (even aside from the ones listed in your macro) 1) it has inherant internal conflicts (separate, non-overlapping grants of authority for access and for copying) 2) it is over broad (a TPM could be darned near any "process" that needed to be applied in order to gain access to the work) > > >Implementations must be found legal or the judge > > > will damn the entire law for its implications. > > > > The "implementation" thing again. I -really- think > > that this is a blind alley. Even if there is some merit > > to the argument from a technical sense (and I am not even > > convinced of that) I believe that explaining what you mean > > is so difficult so as to be counterproductive. > > It hasn't appeared too difficult to a few people on the list. > Maybe I'm > not articulate enough to explain it to everyone. There's lots > about your > position that makes no sense to me, though, so I think it more likely > that we are too entrenched to see the merits of each other's > arguments. You may have something there ;-) > > CSS implementations cannot circumvent CSS because that is a logical > contradiction. Aha. I think I see it. I agree with your sentance as written. BUT The -application- of a CSS implementation may circumvent, if said application was not authorized by the copyright holder. >e are defending the right to implement independent of > the whim of the copyright holder, inline with congressional intent. If > implementations are not read as protected by 1201, the > implications will > damn the law or CSS. I sure as hell hope so. I think the only real difference we have left is that you think the law can be salvaged as-is and I think that it -must- be fixed for it to be meaningful and enforcable. -- -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 Aug 8 13:32:03 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA05132 for dvd-discuss-outgoing; Tue, 8 Aug 2000 13:32:03 -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 NAA05123 for ; Tue, 8 Aug 2000 13:32:02 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id ; Tue, 8 Aug 2000 10:32:26 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1DE2@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] the definition of 'Circumvention' Date: Tue, 8 Aug 2000 10:32:25 -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: Chris Moseng [mailto:moseng@mninter.net] > > > Richard Hartman wrote: > > > Nothing in the law says that the TPM must -check- for > > authorization. Only that the process (or the application > > thereof) -have- authorization. A legal issue, not a > > technical one. > > Big difference between your main and parenthetical claims, there. The > application of the process may or may not be circumvention. > The process > itself can never be. That's a logical contradiction. Of course the > process has authorization, or it wouldn't be the process. > > Or, that's my position, anyway. ;) > Right. But it is the application thereof that must be authorized. At least, that's how I see the writing. -- -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 Aug 8 13:32:24 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA05182 for dvd-discuss-outgoing; Tue, 8 Aug 2000 13:32:24 -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 NAA05133 for ; Tue, 8 Aug 2000 13:32:03 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id NAA26831 for dvd-discuss@eon.law.harvard.edu; Tue, 8 Aug 2000 13:37:29 -0400 Date: Tue, 8 Aug 2000 13:37:24 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] the definition of 'Circumvention' Message-ID: <20000808133723.A26428@eldritchpress.org> References: <398E0278.D718F41D@mit.edu> <200008070243.WAA11449@soggy-fibers.ai.mit.edu> <0FYY00BV5NT3OQ@mta5.snfc21.pbi.net> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <0FYY00BV5NT3OQ@mta5.snfc21.pbi.net>; from qed@pobox.com on Tue, Aug 08, 2000 at 12:11:19AM -0700 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, Aug 08, 2000 at 12:11:19AM -0700, Paul Hsieh wrote: > Robert S. Thau wrote: > > Ravi Nanavati writes: > > > Chris Moseng wrote: >.... > > > 2) CSS-licensed Linux players are in development. > > This is irrelevant. (1) The LiViD developers did not know this at the time, (2) The > announcements made gave no credible time table, (3) Commercial software > running on Linux in of itself is a serious problem since it is possible to build > complete Linux systems with $0 software investment (more to the point: > incremental cost per seat of a site licence is definately $0), (4) These companies > may go out of business (a real possibility since software DVD player vendors are > numerous, royalties for software are slim) in which case there is no guarantee of > continued support for the player (5) There is no guarantee that these companies > would maintain this product line (since because of reason #3, it may provide little > or no revenue in which case it may make no business sense for these vendors to > continue support for these players.) Testimony was introduced that the licensed Linux players would be for particular hardware cards that would not be open source like the rest of Linux development. Thus LiViD had to be started as an unlicensed player if Linux users wished an open source player. From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 8 13:58:00 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA05412 for dvd-discuss-outgoing; Tue, 8 Aug 2000 13:58:00 -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 NAA05409 for ; Tue, 8 Aug 2000 13:57:58 -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 MAA29753 for ; Tue, 8 Aug 2000 12:57:28 -0500 Message-ID: <39904B3E.AE8A27E6@mninter.net> Date: Tue, 08 Aug 2000 13:02:38 -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: [dvd-discuss] effectively controls exegesis References: <5A8391CA2D9ED311AFAA080009D982B10B1DE0@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: > lesse ... (can we just snip the "ordinary course" part > for purposes of this discussion?) > (a technological measure) > (effectively controls access to a work) > if (the measure) requires > (the application of > (information, or a process or treatment), > with > (the authorization of the copyright owner) > ) > > I think the important parens are in the same place in my > parsing as yours ... but that means that "with" binds to > "application of". Requiring the authorization for the > act of applying the process. The process itself does not > require the authorization (i.e. as input for a check). That's funny, but just reading your words here, it sounds like you agree with me. The process itself does not require authorization. The application of the process requires authorization. All CSS implementations are the process. The application of a CSS implementation requires authorization. CSS implementations themselves cannot be authorized or unauthorized, just compliant or not compliant. It seems to me that this is what the law says. Using the process "in the ordinary course of its operation" can never be circumvention, because if it is, it fails (a3B). The implementations of the process all must be "authorized", or it fails (a3B). Let me see if I can put it plainly: The definition of circumvention, (a3A), describes and outlaws certain applications of the process defined in (a3B). The validity of process itself is not in the scope of (a3A), because it is certified in (a3B). If the process is not inherently authorized to be applied, then it fails (a3B). The process must, in the ordinary course of its operation, operate with the authority of the copyright holder. So CSS passes this test and all compliant implementations must have the authority of the copyright holder (and the DeCSS implementation is protected by 1201); or CSS fails this test because not all implementations, in the ordinary course of their operation, have the authority of the copyright holder. This is why that implementations are functionally equivalent makes a difference in the law. How could CSS pass (a3B)? "In the ordinary course of its operation," is what says that the authorization is conveyed within the system. If CSS relies on the title keys to determine authorization, this is in the ordinary course of its operation. How could CSS fail (a3B)? If authorization is external to the CSS system, the authority of the copyright holder has nothing to do with the ordinary course of its operation. If all CSS implementations are defined relying on nothing to ascertain authorization, or if it may or may not be authorized arbitrarily, or if authorization relies on a confluence of events, that authority is conveyed external to the measure, then CSS does not meet (a3B). This is also why implementations are obviously protected by 1201: the authorization to access must be internal, or 1201 does not protect the TPM. If the authorization to access is internal, than an independant implementation is simply the process, always authorized, and it is the use that is made of that process that may or may not be circumvention. This is why I say that 1201 does not, as written, permit the copyright holder to deny authorization to the process itself. Just the application of the process. 1201 protects implementations. This is my first foray into "effectively controls" so forgive me if it is redundant. -- moseng@mninter.net I use PGP 6.5.3 -- http://www.underwhelm.org/pgp From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 8 14:01:40 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA05543 for dvd-discuss-outgoing; Tue, 8 Aug 2000 14:01:40 -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 OAA05540 for ; Tue, 8 Aug 2000 14:01:39 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id ; Tue, 8 Aug 2000 11:02:03 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1DE3@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] the definition of 'Circumvention' Date: Tue, 8 Aug 2000 11:02:02 -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: Chris Moseng [mailto:moseng@mninter.net] > Sent: Tuesday, August 08, 2000 10:12 AM > To: dvd-discuss@eon.law.harvard.edu > Subject: Re: [dvd-discuss] the definition of 'Circumvention' > > > Richard Hartman wrote: > > > > From: Ravi Nanavati [mailto:ravi_n@mit.edu] > > ... > > > > > > I'll take a stab at it. > > > > > > > > > The best argument I can think of that enables what looks like > > > extra-CSS authority is to assert that authority comes from > > > the player key. > > > > No. Extra-CSS authority exists entirely outside the technical > > realm. It is a legal concept, metaphysical in nature. > Authorization > > is when they say "this is authorized" and there is -not- technical > > conveyance involved. > > Do you agree that this obviously unconstitutional, > anti-competitive and > fradulent, or not? I can't tell any more. Yes. That's why I believe that the law must be changed. Our main disagreement as far as I can tell is that you believe that it can be salvaged as-is. -- -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 Aug 8 14:36:10 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA00614 for dvd-discuss-outgoing; Tue, 8 Aug 2000 14:36:10 -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 OAA00611 for ; Tue, 8 Aug 2000 14:36:04 -0400 Message-ID: <20000808203803.29579.qmail@web514.mail.yahoo.com> Received: from [131.44.121.4] by web514.mail.yahoo.com; Tue, 08 Aug 2000 13:38:03 PDT Date: Tue, 8 Aug 2000 13:38:03 -0700 (PDT) From: Bryan Taylor Subject: [dvd-discuss] 28 States Sue Record Companies To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-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 kind of makes you want to trade some mp3's: http://dailynews.yahoo.com/h/nm/20000808/ts/media_compactdiscs_dc_3.html __________________________________________________ Do You Yahoo!? Kick off your party with Yahoo! Invites. http://invites.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 8 14:37:06 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA00637 for dvd-discuss-outgoing; Tue, 8 Aug 2000 14:37:06 -0400 Received: from web6404.mail.yahoo.com (web6404.mail.yahoo.com [128.11.22.152]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id OAA00631 for ; Tue, 8 Aug 2000 14:37:04 -0400 Message-ID: <20000808203941.24724.qmail@web6404.mail.yahoo.com> Received: from [207.1.61.98] by web6404.mail.yahoo.com; Tue, 08 Aug 2000 13:39:41 PDT Date: Tue, 8 Aug 2000 13:39:41 -0700 (PDT) From: Pete Broule Subject: RE: [dvd-discuss] the definition of 'Circumvention' To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > lesse ... (can we just snip the "ordinary course" part > for purposes of this discussion?) > (a technological measure) > (effectively controls access to a work) > if (the measure) requires > (the application of > (information, or a process or treatment), > with > (the authorization of the copyright owner) > ) > > I think the important parens are in the same place in my > parsing as yours ... but that means that "with" binds to > "application of". Requiring the authorization for the > act of applying the process. The process itself does not > require the authorization (i.e. as input for a check). That's what I have assumed in this discussion -- that "with the authority" refers to the act of application. But it is not some abstract act of application that must be authorized. It is the act of application required by the TPM that must be authorized. Let's put it this way: what should a TPM require for gaining access to the work in order to be considered an effective access control, according to 1201(a)(3)(B)? My answer is, "application ..., with the authority." It does not matter whether it actually performs any checks (in fact, the TPM can be a totally passive element or feature, such as encryption), but it must -require- application with authority. IOW, the measure must prevent access to the work, in the absence of application with authority. If the measure allows access to the work otherwise, for example through application without authority, then it does not -require- application with authority to gain access to the work, and consequently does not qualify as an effective access control. __________________________________________________ Do You Yahoo!? Kick off your party with Yahoo! Invites. http://invites.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 8 15:22:02 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA01399 for dvd-discuss-outgoing; Tue, 8 Aug 2000 15:22:02 -0400 Received: from hotmail.com (f141.law9.hotmail.com [64.4.9.141]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id PAB01395 for ; Tue, 8 Aug 2000 15:21:56 -0400 Received: (qmail 72373 invoked by uid 0); 8 Aug 2000 21:23:56 -0000 Message-ID: <20000808212356.72372.qmail@hotmail.com> Received: from 128.244.34.133 by www.hotmail.com with HTTP; Tue, 08 Aug 2000 14:23:56 PDT X-Originating-IP: [128.244.34.133] From: "Harold Eaton" To: dvd-discuss@eon.law.harvard.edu Subject: RE: [dvd-discuss] the definition of 'Circumvention' Date: Tue, 08 Aug 2000 17:23:56 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 think we can both agree to this parsing: (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 treatment), with (the authority of the copyright owner), ) to (gain (access to the work) ) We're making progress. But I think you're still having problems with the word "with" or "requires" or "access". Let me try to clarify: We will use your accepted definition for "with" = "having" Question: do we have "application with authority?" (AWA) Application Authority AWA CSS grants access 1 NO NO NO NO 2 NO YES NO NO 3 YES NO NO YES 4 YES YES YES YES How application and authority came about above shall be taken to be "the ordinary course of its operation" Now in cases 1 and 2 there was no application, so there was no AWA, and no access. In case 3 there was application, but it was without authority, so there is no AWA. CSS allowed us to gain access anyway. In case 4 we had both, so we had AWA and CSS granted access. The statute says it must NOT grant access for case 3. (That's what "REQUIRES AWA to gain access" means: without AWA, no access shall be gained.) However CSS granted access for case 3. You have several escape routes, none of them pleasant to your point of view: (1) CSS does not effectively control access (2) CSS always has authority so case 3 cannot exist. (3) Application or Authority do not have true/false states (4) Authority is granted with the title key (5) case 3 is never "the ordinary course of its operation" (6) Your understanding of simple words like "requires" and "having" are in strong disagreement with most other people's. Lets look at each of them: (1) You cry uncle - we win the argument (2) When a CSS chipset is stolen and used to produce an unauthorized player, that player WILL enable access under case 3 (this is application without authority). You must now argue that a stolen CSS chipset is no longer CSS. This would mean that contracts and/or the metaphysical concept of "authorized" are part and parcel of CSS. If this is true, CSS is not "a technological measure." (3) You think there is "sort of application of process", or "kinda authority, kinda not"; maybe half authority. If so, see (6) and be prepared to explain. (4) You cry uncle - DeCSS is an implementation and so does not circumvent. Change the answer under case 3, "CSS grants access" to NO. (when the title key is absent or wrong) (5) How do external events (like the chipset being stolen, or contracts expiring or being breached) change the "course of CSS's operation?" Please explain if you choose (5). (6) We don't want to go there. Note: the truth table above for AWA is the truth table for the AND logic function. This was the basis for my "with"="and" substitution in earlier posts. For what it's worth, even if CSS does not effectively control access, or the title keys bind authority, the DMCA is still unconstitutional, self conflicting, and overbroad. You CAN have your cake and eat it too. That just means we may need a better future case to get the DMCA thrown out since this case can be won with the law as-is. But who knows, maybe the Courts will be so flumoxed in this case that they strike down the law anyway. ________________________________________________________________________ Get Your Private, Free E-mail from MSN Hotmail at http://www.hotmail.com From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 8 15:54:24 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA02305 for dvd-discuss-outgoing; Tue, 8 Aug 2000 15:54:24 -0400 Received: from mercury.clearway.com (c100.clearway.com [199.103.231.100]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA02302 for ; Tue, 8 Aug 2000 15:54:23 -0400 Received: by c100.clearway.com with Internet Mail Service (5.5.2650.21) id ; Tue, 8 Aug 2000 18:00:48 -0400 Message-ID: From: Leland Ray To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] the definition of 'Circumvention' Date: Tue, 8 Aug 2000 18:00:47 -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 >Robert S. Thau sez: >>Leland Ray writes: > > > I would surmise that the "with the authority of the > > copyright owner" is to make certain that it is the > > copyright owner that is involved in creation of the process > > or the desire to make the work accessible via the > > process. > >So, you're surmising that Congress meant to allow copyright holders to >impose their whims on the public, without notification. Could you >explain how you reconcile this with their ringing praise of the >Betamax decision? Remember, they were reading the law to be >consistent with Betamax --- if not, they likely wouldn't have passed >the law. A very short answer is I believe that 1201 has an internal contradiction that Congress never addressed, and that most members of Congress don't even read the bills they vote on. A longer answer: Remember that 1201 protects two kinds of TPMs, which I will call "access TPMs" and "right preservation TPMs." I refer you to the full text; I'll quote a part of it here. 17 USC 1201 (c) Other Rights, Etc., Not Affected. - (1) Nothing in this section shall affect rights, remedies, limitations, or defenses to copyright infringement, including fair use, under this title. (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. (3) Nothing in this section shall require 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 measure, so long as such part or component, or the product in which such part or component is integrated, does not otherwise fall within the prohibitions of subsection (a)(2) or (b)(1). (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. The purpose of 1 is to preserve Betamax, and to make it clear that copyright holders get no additional rights, any new right in 1201 must be interpreted as part of existing rights. What is strange then, is why the access TPM and right preservation TPM get separate sections. In order to keep access TPMs from being a new right, the use of an access TPM can only be in the midst of an existing right. Of course, an access TPM then is really a subset of a right preservation TPM. The big conflict is between 1 and 3. If all fair use rights are preserved, then how can it be illegal to traffic or possess a device that allows for the exercise of these rights? If an access TPM is protected, then only the access portion is protected, not any additional functions of the TPM. From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 8 17:13:49 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA04143 for dvd-discuss-outgoing; Tue, 8 Aug 2000 17:13:49 -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 RAA04140 for ; Tue, 8 Aug 2000 17:13:48 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id ; Tue, 8 Aug 2000 16:16:53 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1DEC@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] the definition of 'Circumvention' Date: Tue, 8 Aug 2000 16:16:53 -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 > -----Original Message----- > From: Pete Broule [mailto:pbroule@yahoo.com] > Sent: Tuesday, August 08, 2000 1:40 PM > To: dvd-discuss@eon.law.harvard.edu > Subject: RE: [dvd-discuss] the definition of 'Circumvention' > > > > lesse ... (can we just snip the "ordinary course" part > > for purposes of this discussion?) > > (a technological measure) > > (effectively controls access to a work) > > if (the measure) requires > > (the application of > > (information, or a process or treatment), > > with > > (the authorization of the copyright owner) > > ) > > > > I think the important parens are in the same place in my > > parsing as yours ... but that means that "with" binds to > > "application of". Requiring the authorization for the > > act of applying the process. The process itself does not > > require the authorization (i.e. as input for a check). > > That's what I have assumed in this discussion -- that "with the > authority" refers to the act of application. But it is not some > abstract act of application that must be authorized. It is the > act of application required by the TPM that must be authorized. No ... it is the act of application -of- the TPM (assuming that "the TPM" is "the process"). > Let's put it this way: what should a TPM require for gaining > access to the work in order to be considered an effective access > control, according to 1201(a)(3)(B)? My answer is, "application ..., > with the authority." It does not matter whether it actually performs > any checks (in fact, the TPM can be a totally passive element or > feature, such as encryption), but it must -require- application with > authority. Yeeesss ... >IOW, the measure must prevent access to the work, in the > absence of application with authority. Not the way it is written. Nothing states a validation -check- is required to be considered as a TPM. The authorization required is metaphysical in nature, not technical, and comes down to "because they say so". >If the measure allows access > to the work otherwise, for example through application without > authority, then it does not -require- application with authority to > gain access to the work, and consequently does not qualify as an > effective access control. No, the TPM does not require application of anything with authorization. The -law- requires the application of the -TPM- with authorization. -- -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 Aug 8 17:15:29 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA04220 for dvd-discuss-outgoing; Tue, 8 Aug 2000 17:15:29 -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 RAA04217 for ; Tue, 8 Aug 2000 17:15:28 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id ; Tue, 8 Aug 2000 16:18:33 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1DED@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] the definition of 'Circumvention' Date: Tue, 8 Aug 2000 16:18:32 -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 Very well said, Ray. -- -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: Tuesday, August 08, 2000 3:01 PM > To: 'dvd-discuss@eon.law.harvard.edu' > Subject: RE: [dvd-discuss] the definition of 'Circumvention' > > > > >Robert S. Thau sez: > >>Leland Ray writes: > > > > > I would surmise that the "with the authority of the > > > copyright owner" is to make certain that it is the > > > copyright owner that is involved in creation of the process > > > or the desire to make the work accessible via the > > > process. > > > >So, you're surmising that Congress meant to allow copyright > holders to > >impose their whims on the public, without notification. Could you > >explain how you reconcile this with their ringing praise of the > >Betamax decision? Remember, they were reading the law to be > >consistent with Betamax --- if not, they likely wouldn't have passed > >the law. > > A very short answer is I believe that 1201 has an internal > contradiction > that Congress never addressed, and that most members of Congress don't > even read the bills they vote on. > > A longer answer: > > Remember that 1201 protects two kinds of TPMs, which I will call > "access TPMs" and "right preservation TPMs." I refer you to the > full text; I'll quote a part of it here. > > 17 USC 1201 > > (c) Other Rights, Etc., Not Affected. - > > (1) Nothing in this section shall affect rights, > remedies, limitations, > or defenses to copyright infringement, including fair > use, under > this title. > > (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. > > (3) Nothing in this section shall require 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 > measure, so long > as such part or component, or the product in which > such part or > component is integrated, does not otherwise fall within the > prohibitions of subsection (a)(2) or (b)(1). > > (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. > > The purpose of 1 is to preserve Betamax, and to make it clear > that copyright > holders get no additional rights, any new right in 1201 must > be interpreted > as part of existing rights. What is strange then, is why the > access TPM and > right preservation TPM get separate sections. > > In order to keep access TPMs from being a new right, the use > of an access > TPM can only be in the midst of an existing right. Of course, > an access TPM > then is really a subset of a right preservation TPM. > > The big conflict is between 1 and 3. If all fair use rights > are preserved, > then how can it be illegal to traffic or possess a device that allows > for the exercise of these rights? > > If an access TPM is protected, then only the access portion > is protected, > not any additional functions of the TPM. > > > From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 8 17:45:15 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA05301 for dvd-discuss-outgoing; Tue, 8 Aug 2000 17:45:15 -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 RAA05298 for ; Tue, 8 Aug 2000 17:45:14 -0400 Message-ID: <20000808234725.5613.qmail@web515.mail.yahoo.com> Received: from [64.81.25.36] by web515.mail.yahoo.com; Tue, 08 Aug 2000 16:47:25 PDT Date: Tue, 8 Aug 2000 16:47:25 -0700 (PDT) From: Bryan Taylor Subject: [dvd-discuss] 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 Briefs were supposed to be filed today in the NY case. Anybody know if this happened? Can somebody get ahold of electronic copies of them? __________________________________________________ Do You Yahoo!? Kick off your party with Yahoo! Invites. http://invites.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 8 18:40:06 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA06985 for dvd-discuss-outgoing; Tue, 8 Aug 2000 18:40:06 -0400 Received: from web6405.mail.yahoo.com (web6405.mail.yahoo.com [128.11.22.153]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id SAA06982 for ; Tue, 8 Aug 2000 18:40:05 -0400 Message-ID: <20000809004246.553.qmail@web6405.mail.yahoo.com> Received: from [24.128.190.214] by web6405.mail.yahoo.com; Tue, 08 Aug 2000 17:42:46 PDT Date: Tue, 8 Aug 2000 17:42:46 -0700 (PDT) From: Pete Broule Subject: RE: [dvd-discuss] the definition of 'Circumvention' To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-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: > > > -----Original Message----- > > From: Pete Broule [mailto:pbroule@yahoo.com] > > Sent: Tuesday, August 08, 2000 1:40 PM > > To: dvd-discuss@eon.law.harvard.edu > > Subject: RE: [dvd-discuss] the definition of 'Circumvention' > > > > > > > lesse ... (can we just snip the "ordinary course" part > > > for purposes of this discussion?) > > > (a technological measure) > > > (effectively controls access to a work) > > > if (the measure) requires > > > (the application of > > > (information, or a process or treatment), > > > with > > > (the authorization of the copyright owner) > > > ) > > > > > > I think the important parens are in the same place in my > > > parsing as yours ... but that means that "with" binds to > > > "application of". Requiring the authorization for the > > > act of applying the process. The process itself does not > > > require the authorization (i.e. as input for a check). > > > > That's what I have assumed in this discussion -- that "with the > > authority" refers to the act of application. But it is not some > > abstract act of application that must be authorized. It is the > > act of application required by the TPM that must be authorized. > > No ... it is the act of application -of- the TPM (assuming > that "the TPM" is "the process"). That's very different from what 1201(a)(3)(B) says. I simply cannot see where you are reading it from. It says, "the measure ... requires the application of [something]." A simple grammar exercise would be to rewrite this as "the application of [something] is required by the measure." Even assuming that the measure itself is what needs to be applied, which, IMO, is completely arbitrary, unsupported by the statute, unrealistic in general (you don't apply a lock to itself, you apply a key to it), and specifically false in the case of CSS (the TPM is encryption, and what you need to apply is an authentication and decryption algorithm, plus a player key) -- even assuming that, the application is still required by the measure. > > > Let's put it this way: what should a TPM require for gaining > > access to the work in order to be considered an effective access > > control, according to 1201(a)(3)(B)? My answer is, "application > ..., > > with the authority." It does not matter whether it actually > performs > > any checks (in fact, the TPM can be a totally passive element or > > feature, such as encryption), but it must -require- application > with > > authority. > > Yeeesss ... > > >IOW, the measure must prevent access to the work, in the > > absence of application with authority. > > Not the way it is written. Nothing states a validation -check- > is required to be considered as a TPM. The authorization required > is metaphysical in nature, not technical, and comes down to "because > they say so". > > >If the measure allows access > > to the work otherwise, for example through application without > > authority, then it does not -require- application with authority to > > gain access to the work, and consequently does not qualify as an > > effective access control. > > No, the TPM does not require application of anything with > authorization. In the last paragraph I said that the measure must require application with authority, and you said, "Yeeesss." If the TPM does not require application of anything with authorization, then it does not satisfy the definition of an effective access control. > > The -law- requires the application of the -TPM- with authorization. What law? What paragraph? Clearly, 1201(a)(3)(B) we are currently discussing does not say anything like "every person shall apply TPMs with authorization." In fact, 1201(a)(3)(B) cannot, and does not, require anything at all. It's a definition paragraph; all it does is define what an effective access control is. __________________________________________________ Do You Yahoo!? Kick off your party with Yahoo! Invites. http://invites.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 8 18:41:46 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA07078 for dvd-discuss-outgoing; Tue, 8 Aug 2000 18:41:46 -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 SAA07075 for ; Tue, 8 Aug 2000 18:41:46 -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 UAA04134 for ; Tue, 8 Aug 2000 20:44:27 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id UAA20278; Tue, 8 Aug 2000 20:44:25 -0400 (EDT) Date: Tue, 8 Aug 2000 20:44:25 -0400 (EDT) Message-Id: <200008090044.UAA20278@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: RE: [dvd-discuss] the definition of 'Circumvention' In-Reply-To: References: Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Leland Ray writes: > > > >So, you're surmising that Congress meant to allow copyright holders to > >impose their whims on the public, without notification. Could you > >explain how you reconcile this with their ringing praise of the > >Betamax decision? Remember, they were reading the law to be > >consistent with Betamax --- if not, they likely wouldn't have passed > >the law. > > A very short answer is I believe that 1201 has an internal contradiction > that Congress never addressed, and that most members of Congress don't > even read the bills they vote on. Well, to be fair, members I quote were fairly deeply involved in the process, for the most part (Ashcroft actually proposed his own bill before the introduction of the final DMCA, which, BTW, would have been a much better law). But they may not have understand the technology well, and without that, it's really hard to understand the implications of the law. > In order to keep access TPMs from being a new right, the use of an access > TPM can only be in the midst of an existing right. Of course, an access TPM > then is really a subset of a right preservation TPM. I'm not sure; an access TPM could also enforce first sale conditions, which could arguably be consistent with preexisting law, but is not itself a preexisting right. > The big conflict is between 1 and 3. If all fair use rights are preserved, > then how can it be illegal to traffic or possess a device that allows > for the exercise of these rights? WRT 1201(b), this is clearly a problem --- but 1201(b) has lots of problems. WRT 1201(a), I'm no longer sure. > If an access TPM is protected, then only the access portion is protected, > not any additional functions of the TPM. And only to the extent that it actually does govern access, not regarding any ancillary functions or effects. No arguments here. rst From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 8 18:53:26 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA07176 for dvd-discuss-outgoing; Tue, 8 Aug 2000 18:53:26 -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 SAA07173 for ; Tue, 8 Aug 2000 18:53:25 -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 UAA04887 for ; Tue, 8 Aug 2000 20:56:06 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id UAA20303; Tue, 8 Aug 2000 20:56:05 -0400 (EDT) Date: Tue, 8 Aug 2000 20:56:05 -0400 (EDT) Message-Id: <200008090056.UAA20303@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: RE: [dvd-discuss] the definition of 'Circumvention' In-Reply-To: <200008090044.UAA20278@soggy-fibers.ai.mit.edu> References: <200008090044.UAA20278@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: > I'm not sure; an access TPM could also enforce first sale conditions, > which could arguably be consistent with preexisting law, but is not > itself a preexisting right. I'm garbling things again --- what the tpm might do is deny access, under the first sale rule, to people who haven't paid for the work. (Though this gets messy if you try to allow for resale --- not a possibility for one-time PPV cable, which seems to have been the paradigmatic case for Congress). An access TPM could also be used to enforce the conditions of some more restrictive license agreement, such as for Circuit City Divx, but there's nothing like that for plain DVDs. Confusedly yours, rst From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 8 19:32:28 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA07610 for dvd-discuss-outgoing; Tue, 8 Aug 2000 19:32:28 -0400 Received: from hotmail.com (f24.law9.hotmail.com [64.4.9.24]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id TAA07607 for ; Tue, 8 Aug 2000 19:32:27 -0400 Received: from mail pickup service by hotmail.com with Microsoft SMTPSVC; Tue, 8 Aug 2000 18:34:38 -0700 Received: from 38.30.240.228 by lw9fd.law9.hotmail.msn.com with HTTP; Wed, 09 Aug 2000 GMT X-Originating-IP: [38.30.240.228] From: "Harold Eaton" To: dvd-discuss@eon.law.harvard.edu Subject: RE: [dvd-discuss] the definition of 'Circumvention' Date: Tue, 08 Aug 2000 21:34:38 EDT Mime-Version: 1.0 Content-Type: text/plain; format=flowed Message-ID: X-OriginalArrivalTime: 09 Aug 2000 01:34:38.0301 (UTC) FILETIME=[FB3FF8D0:01C001A1] Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Robert S. Thau wrote: >I'm garbling things again --- what the tpm might do is deny access, >under the first sale rule, to people who haven't paid for the work. >(Though this gets messy if you try to allow for resale --- not a >possibility for one-time PPV cable, which seems to have been the >paradigmatic case for Congress). The comments by the Recording Merchandisers http://www.loc.gov/copyright/reports/studies/dmca/comments/Init027.pdf to the Library of Congress actually make a pretty good case for the right to resale of a PPV cable program under the first sale rule. In general their comments are very heartwarming to the powers of good.... ________________________________________________________________________ Get Your Private, Free E-mail from MSN Hotmail at http://www.hotmail.com From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 8 21:50:22 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA08734 for dvd-discuss-outgoing; Tue, 8 Aug 2000 21:50:22 -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 VAA08731 for ; Tue, 8 Aug 2000 21:50:20 -0400 Received: by aero.org id <17096-7>; Tue, 8 Aug 2000 20:52:53 -0700 Received: from mhultra.aero.org(130.221.88.102) via SMTP by aero.org, id smtpdAAAa18789; Tue Aug 8 20:52:45 2000 Received: from lahub01-a3.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Tue, 8 Aug 2000 20:52:11 -0700 Subject: Re: [dvd-discuss] Copyright Office Comments Up 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 08/08/2000 08:52:10 PM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Date: Tue, 8 Aug 2000 20:52:52 -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Mea Culpa.....For various reasons I didn't get mine in time. [ power outages and remote access and memory of dates being the worst .....OK I'm not 21 anymore]..recommendation to all. READ them and submit comments. THe shear numbers may help. BTW- THe concept of COB in this deals with pragmatic concerns of the mail, retyping, typesetting etc. The idea of closing comments and then asking for replys at some time is "old fashioned". What they probably should do is set up a BBS for posting comments and replys with an absolute cut off date. But then the speed withwhich things occur scrares many but many more haven't adjusted to it yet. Bryan Taylor @eon.law.harvard.edu on 08/08/2000 09:06:45 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] Copyright Office Comments Up The latest RFC comments are up. http://www.loc.gov/copyright/reports/studies/dmca/comments/ I haven't even read any yet. There were only 30 of them. __________________________________________________ Do You Yahoo!? Kick off your party with Yahoo! Invites. http://invites.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 9 03:08:22 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id DAA10040 for dvd-discuss-outgoing; Wed, 9 Aug 2000 03:08:22 -0400 Received: from mail.virtualrecordings.com ([209.0.104.81]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id DAA10037 for ; Wed, 9 Aug 2000 03:08:21 -0400 Received: from eff.org [209.0.105.216] by mail.virtualrecordings.com with ESMTP (SMTPD32-6.00) id AFAACCE0003C; Wed, 09 Aug 2000 02:08:58 -0700 Message-ID: <39911F68.3C44E1EA@eff.org> Date: Wed, 09 Aug 2000 02:07:52 -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: [dvd-discuss] DMCA Unconstitutional if Fair Use Tools Prohibited Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu EFF DVD Update: August 8, 2000 Universal City Studios et al v. 2600 Magazine EFF Files Legal Brief in NY DVD Case: DMCA Unconstitutional if Fair Use Tools Prohibited EFF filed its legal brief today showing how the movie studios' interpretation of the DMCA impermissibly curtails fundamental First Amendment freedoms. In their attempt to ban DeCSS, the studios, "argue for an interpretation of the DMCA that would give copyright owners the power to eliminate fair use of their works, by giving them direct authority over all physical means usable to display or copy those works," the brief began. EFF's defense team established that DeCSS does not violate the DMCA because people have the legal authority under copyright law to view (decrypt) the DVD when they purchase it, on whatever operating system they use. The movie studios are attempting to use the DMCA to dictate the terms under which individuals must watch DVDs in their own homes -- something entirely outside the scope of the studios' legal right to control. The movie studios are attempting to expand the DMCA to grant them the exclusive right to distribute the only legal means of access to a DVD. EFF's Defense team established that DeCSS was part of a successful attempt to facilitate interoperability between platforms, something that the DMCA explicitly allows. Testimony at trial proved DeCSS was designed (and necessary) for the LiVid Project to create a DVD player for the Linux operating system that would compete with DVD-CCA's monopoly on players. Uncontroverted evidence showed that DeCSS' only use has been as a fair use tool - to allow people to play the DVDs that they purchased on their computers. After ten months of investigation the studios failed to locate a single instance of illegal DVD copying related to DeCSS, despite the picture of eminent doom painted for the judge in January when he granted the injunction. "In sum, the Court must find an interpretation that maintains fair use of technologically-protected works, and allows open publication of computer programs within the framework of the DMCA, or else find Section 1201 of that statute to be unconstitutional under the First Amendment," stated EFF's brief in defense of publisher Emmanuel Goldstein and 2600.com. EFF's Trial Brief: http://www.eff.org/IP/Video/MPAA_DVD_cases/20000808_ny_post_trial_brief.html An index of EFF's DVD updates can be found at: http://www.eff.org/IP/Video/dvd_updates_archive.html EFF's archive of MPAA v 2600 litigation including trial transcripts, legal filings, and deposition testimony: 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 majordomo@eff.org 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 Aug 9 04:16:37 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id EAA10685 for dvd-discuss-outgoing; Wed, 9 Aug 2000 04:16:37 -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 EAA10682 for ; Wed, 9 Aug 2000 04:16:33 -0400 Received: by chiara.elte.hu (Postfix, from userid 17806) id B99087E1B5; Wed, 9 Aug 2000 12:19:09 +0200 (CEST) Date: Wed, 9 Aug 2000 12:28:12 +0200 (CEST) From: Ingo Molnar To: dvd-discuss@eon.law.harvard.edu Subject: RE: [dvd-discuss] the definition of 'Circumvention' 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, 5 Aug 2000, Jim Taylor wrote: > >> You could not get PGP banned, because it clearly has other uses. [...] > > > >no. The decryption part of PGP has a sole purpose: to decrypt an encrypted > >email. So in this context, PGP's decryption part circumvents. It clearly > >works for many different copyright holders, but it takes just one > >copyright holder to complain under the DMCA, and PGP's decryption > >functionality becomes a circumvention device. > > No, no, no. You can't turn something into a circumvention device! The > DMCA is very clear about this. It talks about a device that is > "primarily designed or produced for the purpose of circumventing." PGP > was not designed for this. Using it for circumvention does not change > anything. this depends on the definition of 'circumvention'. PGP might not have been intentionally designed to 'circumvent', but it was designed to 'decrypt regardless of the authority of the copyright holder', so per definition it's designed to 'circumvent'. I couldnt agree more with you that this is stupid, but this is what the definition of circumvention means. (PGP was designed before the DMCA, but you get the point - the law say *nothing* about what the time-scope of authority is, ie. if authority or disauthority comes *after* a device has been designed, it does not mean the device does not circumvent.) > >PGP itself (the package) has other, encryption and key management > >functionality as well (just as DeCSS has 'save to disk' and 'display a > >messages' parts - this is even more visible in the LiViD case), but this > >does not change the fact that the decryption part's only purpose is to > >decrypt. DeCSS's CSS parts have one purpose: to decrypt. (obviously) > > No. CSS has a vital purpose other than to decrypt. That's the > difference. CSS includes multiple keys, ways of hiding keys on a disc, > algorithms for authentication, etc. All of this is designed to create > a system with one and only one intent: protect content on DVD. Thus it > gets special treatment under the DMCA. i said "DeCSS's CSS parts", not "CSS as a whole". The legal question is, can you 'circumvent' a (substantially-) sub-set of "CSS"? Ingo From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 9 04:24:09 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id EAA10837 for dvd-discuss-outgoing; Wed, 9 Aug 2000 04:24:09 -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 EAA10834 for ; Wed, 9 Aug 2000 04:23:57 -0400 Received: from easybase.com (unverified [192.115.162.238]) by server.easybase.com (EMWAC SMTPRS 0.83) with SMTP id ; Wed, 09 Aug 2000 13:25:18 +0300 Message-ID: <39915D8C.2AC94BBE@easybase.com> Date: Wed, 09 Aug 2000 13:33:00 +0000 From: Moshe Vainer X-Mailer: Mozilla 4.72 [en] (X11; U; Linux 2.2.17-0.16mdk i686) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] DMCA Unconstitutional if Fair Use Tools Prohibited References: <39911F68.3C44E1EA@eff.org> Content-Type: text/plain; charset=iso-8859-15 Content-Transfer-Encoding: 8bit X-MIME-Autoconverted: from base64 to 8bit by eon.law.harvard.edu id EAA10835 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu The brief says: Defendants argue in their reply that a description of software in English informs the intellect but source code actually allows someone to encrypt data. Defendants appear to insist that the higher the utility value of speech the less like speech it is. An extension of that argument assumes that once language allows one to actually do something, like play music or make lasagne, the language is no longer speech. The logic of this proposition is dubious at best. Its support in First Amendment law is nonexistent. 922 F. Supp 1435-36. Thus, a computer program such as DeCSS cannot simply be outlawed without carefully considering its expressive content. It probably was meant to be Plaintiffs? Robin Gross wrote: > EFF DVD Update: August 8, 2000 > Universal City Studios et al v. 2600 Magazine > > EFF Files Legal Brief in NY DVD Case: > DMCA Unconstitutional if Fair Use Tools Prohibited > > EFF filed its legal brief today showing how the movie studios' > interpretation of the DMCA impermissibly curtails fundamental First > Amendment freedoms. In their attempt to ban DeCSS, the studios, "argue > for an interpretation of the DMCA that would give copyright owners the > power to eliminate fair use of their works, by giving them direct > authority over all physical means usable to display or copy those > works," the brief began. > > EFF's defense team established that DeCSS does not violate the DMCA > because people have the legal authority under copyright law to view > (decrypt) the DVD when they purchase it, on whatever operating system > they use. The movie studios are attempting to use the DMCA to dictate > the terms under which individuals must watch DVDs in their own homes -- > something entirely outside the scope of the studios' legal right to > control. > > The movie studios are attempting to expand the DMCA to grant them the > exclusive right to distribute the only legal means of access to a DVD. > EFF's Defense team established that DeCSS was part of a successful > attempt to facilitate interoperability between platforms, something that > the DMCA explicitly allows. Testimony at trial proved DeCSS was > designed (and necessary) for the LiVid Project to create a DVD player > for the Linux operating system that would compete with DVD-CCA's > monopoly on players. > > Uncontroverted evidence showed that DeCSS' only use has been as a fair > use tool - to allow people to play the DVDs that they purchased on their > computers. After ten months of investigation the studios failed to > locate a single instance of illegal DVD copying related to DeCSS, > despite the picture of eminent doom painted for the judge in January > when he granted the injunction. > > "In sum, the Court must find an interpretation that maintains fair use > of technologically-protected works, and allows open publication of > computer programs within the framework of the DMCA, or else find Section > 1201 of that statute to be unconstitutional under the First Amendment," > stated EFF's brief in defense of publisher Emmanuel Goldstein and > 2600.com. > > EFF's Trial Brief: > http://www.eff.org/IP/Video/MPAA_DVD_cases/20000808_ny_post_trial_brief.html > > An index of EFF's DVD updates can be found at: > http://www.eff.org/IP/Video/dvd_updates_archive.html > > EFF's archive of MPAA v 2600 litigation including trial transcripts, > legal filings, and deposition testimony: > 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 majordomo@eff.org > 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 Aug 9 04:28:34 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id EAA10889 for dvd-discuss-outgoing; Wed, 9 Aug 2000 04:28:34 -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 EAA10886 for ; Wed, 9 Aug 2000 04:28:31 -0400 Received: by chiara.elte.hu (Postfix, from userid 17806) id ED9A07E1B5; Wed, 9 Aug 2000 12:31:08 +0200 (CEST) Date: Wed, 9 Aug 2000 12:40:12 +0200 (CEST) From: Ingo Molnar To: dvd-discuss@eon.law.harvard.edu Subject: RE: [dvd-discuss] We've proved Reverse Engineering 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, 6 Aug 2000, Jim Taylor wrote: > >well, there are CSS licensing fees. But more imporantly, with LiViD there > >goes the possibility for them to control use of authorized DVDs, which > >*is* a very lucrative business. Just compare the price of DVDs in the US > >and in Europe, then multiply it by the millions of DVDs sold every month. > > The studios get money no matter where the disc is sold. In some cases > they get *more* money for US discs since they don't go through an > intermediate distributor or studio. If there are more players > (including LiViD), then they sell more discs, and they get more money. > It's as simple as that. it does not matter whether 'region coding' is an economically sound concept or not, based on your comments i now agree with you that region coding in its current form isnt all that smart. But it's a beginning - it restrains free trade, and by plaintiff's interpretation this 'use and distribution control' is given to them by the DMCA. I only demonstrated that it's possible to be anticompetitive via licensing terms, even if every licensee gets the same license. (putting geographical assymetry into the license alone enables price differences) [this was your original claim.] Wether this anticompetitive practice in fact hurts them (in the short or long term) is irrelevant - Microsoft probably hurts themselves more in the long term by being anticompetitive (lost trust, lost mindshare), but this does not mean they have not violated the Shermann Act. Ingo From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 9 08:37:33 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id IAA11944 for dvd-discuss-outgoing; Wed, 9 Aug 2000 08:37:33 -0400 Received: from odin.funcom.com (odin.funcom.com [193.71.100.3]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id IAA11941 for ; Wed, 9 Aug 2000 08:37:30 -0400 Received: from odin ([193.71.100.3]) by odin.funcom.com with smtp (Exim 2.12 #1) id 13MV6S-0006yx-00; Wed, 9 Aug 2000 14:37:00 +0200 Date: Wed, 9 Aug 2000 14:37:00 +0200 (CEST) From: Frank Andrew Stevenson X-Sender: frank@odin To: dvd-discuss@eon.law.harvard.edu cc: webmaster@eff.org Subject: Re: [dvd-discuss] DMCA Unconstitutional if Fair Use Tools Prohibited In-Reply-To: <39915D8C.2AC94BBE@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 This section is probable mis formatted in html, I believe it is a qoute from the Bernstein ruling, in which the DOD ( not DoD :-) was a defendant. frank On Wed, 9 Aug 2000, Moshe Vainer wrote: > The brief says: > > > Defendants argue in their reply that a description of software in English informs the > intellect but source code actually allows someone to encrypt data. Defendants appear to > insist that the higher the utility value of speech the less like speech it is. An > extension of that argument assumes that once language allows one to actually do something, > like play music or make lasagne, the language is no longer speech. The logic of this > proposition is dubious at best. Its support in First Amendment law is nonexistent. 922 F. > Supp 1435-36. Thus, a computer program such as DeCSS cannot simply be outlawed without > carefully considering its expressive content. > > It probably was meant to be Plaintiffs? > This sentence is unique in this respect; it can safely be attributed to my employer, Funcom Oslo AS. There is no place like N59 50.558' E010 50.870'. (WGS84) I enjoy coffee, and support cafe: http://www.eff.org/cafe/ From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 9 09:34:19 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA12517 for dvd-discuss-outgoing; Wed, 9 Aug 2000 09:34:19 -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 JAA12514 for ; Wed, 9 Aug 2000 09:34:16 -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 PAA09981 for ; Wed, 9 Aug 2000 15:29:29 +0200 Message-ID: <39915DB9.885CCADD@trustix.com> Date: Wed, 09 Aug 2000 15:33:45 +0200 From: Lars Gaarden Organization: Trustix AS X-Mailer: Mozilla 4.74 [en] (X11; U; Linux 2.4.0-t6p6imE2 i686) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Copyright Office Comments Up References: <20000808155753.28456.qmail@web511.mail.yahoo.com> Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Bryan Taylor wrote: > > The latest RFC comments are up. > > http://www.loc.gov/copyright/reports/studies/dmca/comments/ > > I haven't even read any yet. There were only 30 of them. Here's a nice one from the NARM/VSDA comment. "Because Congress saw fit to exhaust the copyright owners right to restrict the distribution of a lawfully made copy or phonorecord once it is owned by another, any use of access control technology to circumvent the will of Congress and effectively revive a right that the law extinguished must be considered copyright misuse. In the same vein, if a technological control measure effectively renders a sound recording or motion picture unplayable if the owner of the copy or phonorecord transfers title to another, such measure frustrates the Congressional will and technologically prohibits a transfer that the copyright owner has no lawful right to prohibit." -- 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 Wed Aug 9 10:54:21 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA14376 for dvd-discuss-outgoing; Wed, 9 Aug 2000 10:54:21 -0400 Received: from ghost.bibliotrack.com (root@adsl-151-202-34-10.bellatlantic.net [151.202.34.10]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id KAA14373 for ; Wed, 9 Aug 2000 10:54:19 -0400 Received: from seltzerw ([204.243.92.112]) by ghost.bibliotrack.com (8.9.3/8.9.3) with ESMTP id KAA18210 for ; Wed, 9 Aug 2000 10:43:55 -0400 Message-Id: <4.2.2.20000809104302.025b9250@seltzer.com> X-Sender: wendy@seltzer.com (Unverified) X-Mailer: QUALCOMM Windows Eudora Pro Version 4.2.2 Date: Wed, 09 Aug 2000 10:53:04 -0400 To: dvd-discuss@eon.law.harvard.edu From: Wendy Seltzer Subject: [dvd-discuss] MPAA brief online Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii"; format=flowed Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu The MPAA members' brief seems to be arguing an entirely different case from EFF's, focusing on the threat of "piracy" to the near exclusion of constitutional issues or problems with section 1201. Note particularly the claims that 2600 was singlehandedly responsible for the worldwide dissemination of DeCSS and attempts in the conclusion to tar the defendants as Napster cronies. We still don't get an explanation of their authority model -- they take it as a given that CSS is an effective TPM and that DeCSS plainly operates "without the authority of the copyright owner." We're expecting Kaplan's decision within a week. A good Washington Post article: --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 Aug 9 11:21:34 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA14672 for dvd-discuss-outgoing; Wed, 9 Aug 2000 11:21:34 -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 LAA14669 for ; Wed, 9 Aug 2000 11:21:26 -0400 Received: from mit.edu (h0050da62b39d.ne.mediaone.net [24.147.219.153]) by chmls06.mediaone.net (8.8.7/8.8.7) with ESMTP id LAA24562; Wed, 9 Aug 2000 11:20:58 -0400 (EDT) Message-ID: <39917737.7A1B2E8F@mit.edu> Date: Wed, 09 Aug 2000 11:22:31 -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] MPAA brief online References: <4.2.2.20000809104302.025b9250@seltzer.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 Wendy Seltzer wrote: > > The MPAA members' brief seems to be arguing an entirely different case from > EFF's, focusing on the threat of "piracy" to the near exclusion of > constitutional issues or problems with section 1201. > > > Note particularly the claims that 2600 was singlehandedly responsible for > the worldwide dissemination of DeCSS and attempts in the conclusion to tar > the defendants as Napster cronies. We still don't get an explanation of > their authority model -- they take it as a given that CSS is an effective > TPM and that DeCSS plainly operates "without the authority of the copyright > owner." > > We're expecting Kaplan's decision within a week. > > A good Washington Post article: > Reading their brief, which says "DeCSS is a circumvention device" over and over as if that would prove the statement depresses me. The only claim to authorization they make is legal, not technical [LiVid does not possess a CSS license]. If the plaintiffs authority model had been known when this list was set up all messages on the list should have been rot13 encrypted. Then, when plaintiffs revealed some knowledge of the contents of the list we could have asserted that plaintiffs were not authorized to read those messages and asked them to explain the inconsistency. If they were not amused we could have yelled "Netscape is a circumvention device" until they shut up. - Ravi Nanavati From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 9 11:42:57 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA14850 for dvd-discuss-outgoing; Wed, 9 Aug 2000 11:42:57 -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 LAA14847 for ; Wed, 9 Aug 2000 11:42:53 -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 KAA24285 for ; Wed, 9 Aug 2000 10:41:52 -0500 Message-ID: <39917CCB.B8494F66@mninter.net> Date: Wed, 09 Aug 2000 10:46:19 -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] MPAA brief online References: <4.2.2.20000809104302.025b9250@seltzer.com> <39917737.7A1B2E8F@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 Are corporate lawyers exempt from logic class? >From the MPAA brief: "In fact, the evidence shows that the Linux argument is a red herring: DeCSS was developed for and runs under the Microsoft Windows operating system. Further, one of the creators of DeCSS, Jon Johansen, admitted that he first provided DeCSS to an Internet Relay Chat ("IRC") room, called "#pcdvd," which is not limited to users of the Linux operating system." Talk about non sequitur and misdirection. This brief is doublespeak through and through. -- moseng@mninter.net I use PGP 6.5.3 -- http://www.underwhelm.org/pgp From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 9 11:48:42 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA15498 for dvd-discuss-outgoing; Wed, 9 Aug 2000 11:48:42 -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 LAA15494 for ; Wed, 9 Aug 2000 11:48:37 -0400 Received: from localhost (localhost [[UNIX: localhost]]) by rjmconsulting.com (8.9.3/8.9.3) id IAA04832 for dvd-discuss@eon.law.harvard.edu; Wed, 9 Aug 2000 08:59:20 -0700 From: Russell (James) Miller To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] MPAA brief online Date: Wed, 9 Aug 2000 08:58:17 -0700 X-Mailer: KMail [version 1.0.29.2] Content-Type: text/plain References: <4.2.2.20000809104302.025b9250@seltzer.com> <39917737.7A1B2E8F@mit.edu> <39917CCB.B8494F66@mninter.net> In-Reply-To: <39917CCB.B8494F66@mninter.net> MIME-Version: 1.0 Message-Id: <0008090859170X.03073@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 Wed, 09 Aug 2000, you wrote: > Are corporate lawyers exempt from logic class? > > Talk about non sequitur and misdirection. This brief is doublespeak > through and through. Unfortunately, the way the judge has acted throughout this case, they shrewdly know that this will probably work. --james (Russell) > -- > moseng@mninter.net > I use PGP 6.5.3 -- http://www.underwhelm.org/pgp -- Russell (James) 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 Aug 9 11:54:27 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA15686 for dvd-discuss-outgoing; Wed, 9 Aug 2000 11:54:27 -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 LAA15683 for ; Wed, 9 Aug 2000 11:54:17 -0400 Received: by chiara.elte.hu (Postfix, from userid 17806) id 06AA97E1B5; Wed, 9 Aug 2000 17:53:27 +0200 (CEST) Date: Wed, 9 Aug 2000 18:02:34 +0200 (CEST) From: Ingo Molnar To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] claim of 'injury' In-Reply-To: <4.2.2.20000809104302.025b9250@seltzer.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 what about the MPAA's main argument? This showing is sufficient here. "When the [Supreme] Court has decided actual cases involving statutory rights, it has never required any showing of injury beyond that set out in the statute itself" that is, beyond "the violation of the statutorily conferred right." ie. 'no need to show actual injury' - is this actually true? The position of the defense team regarding this issue is that: Obviously, if a device or utility circumvents an access control as defined in the DMCA, there is a resulting "loss of security" as to such control. However, if this fact alone equated to injury, there would have been no reason for Congress to include the word "injury" in ' 1203. The statute would simply have permitted an affected person to file an action upon learning of such a device or utility. Congress clearly must have intended that a plaintiff show an injury separate and apart from just knowing that their protection has been breached. i'm curious, which point is the more robust one? This appears to be a rather central issue IMHO. Ingo From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 9 12:02:59 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA15850 for dvd-discuss-outgoing; Wed, 9 Aug 2000 12:02:59 -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 MAA15847 for ; Wed, 9 Aug 2000 12:02:48 -0400 Received: by chiara.elte.hu (Postfix, from userid 17806) id 69F607E1B5; Wed, 9 Aug 2000 18:02:11 +0200 (CEST) Date: Wed, 9 Aug 2000 18:11:18 +0200 (CEST) From: Ingo Molnar To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] MPAA brief online In-Reply-To: <4.2.2.20000809104302.025b9250@seltzer.com> Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu the MPAA writes: [...] Although defendants try to excuse their illegal conduct by arguing that DeCSS was used in the development of an unauthorized Linux DVD player (i.e. not licensed to decrypt CSS encoded movies), defendants admittedly were never involved in any such development efforts. this borders an outright lie. *Defendants* were not (Mr. Coley is a journalist), but the creator of DeCSS, Mr. Johansen, was. His (uncontested) testimony: 21 A. Well, after I had created the DeCSS executable, I posted 22 it on my website, I made an announcement on the LiViD mailing 23 list. I posted a link to my website. 24 Q. Why did you make an announcement on the LiViD mailing 25 list? 1 A. Well, I wanted them to know that we had successfully 2 reverse-engineered a DVD player and obtained the algorithm we 3 needed to make a DVD player. i cannot believe the MPAA sincerely hopes to slip these things past Judge Kaplan... Their reply brief is completely unfocused, full of rhetoric and it and evades a couple of core issues. What is their goal, are they really this stupid? Ingo From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 9 12:07:03 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA15969 for dvd-discuss-outgoing; Wed, 9 Aug 2000 12:07:03 -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 MAA15966 for ; Wed, 9 Aug 2000 12:07:00 -0400 Received: from localhost (localhost [[UNIX: localhost]]) by rjmconsulting.com (8.9.3/8.9.3) id JAA09666 for dvd-discuss@eon.law.harvard.edu; Wed, 9 Aug 2000 09:17:44 -0700 From: Russell (James) Miller To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] MPAA brief online Date: Wed, 9 Aug 2000 09:17:02 -0700 X-Mailer: KMail [version 1.0.29.2] Content-Type: text/plain References: In-Reply-To: MIME-Version: 1.0 Message-Id: <0008090917420Y.03073@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 Wed, 09 Aug 2000, you wrote: > i cannot believe the MPAA sincerely hopes to slip these things past Judge > Kaplan... Their reply brief is completely unfocused, full of rhetoric and > it and evades a couple of core issues. What is their goal, are they really > this stupid? > Their goal is to slip these things past Judge Kaplan. They are not stupid - they are very smart, and devious, and incredibly amoral. --james (Russell) > Ingo -- Russell (James) 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 Aug 9 12:12:40 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA16108 for dvd-discuss-outgoing; Wed, 9 Aug 2000 12:12:40 -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 MAA16105 for ; Wed, 9 Aug 2000 12:12:36 -0400 Received: by chiara.elte.hu (Postfix, from userid 17806) id 7618A7E1B5; Wed, 9 Aug 2000 18:12:09 +0200 (CEST) Date: Wed, 9 Aug 2000 18:21:17 +0200 (CEST) From: Ingo Molnar To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] MPAA brief online In-Reply-To: <0008090859170X.03073@www.rjmconsulting.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, 9 Aug 2000, Russell (James) Miller wrote: > Unfortunately, the way the judge has acted throughout this case, they > shrewdly know that this will probably work. they might have had Kaplan on their side at the beginning (and maybe even half through the actual trial), but the less than forthcoming testimony of MPAA witnesses, and the very consistent and straightforward testimony of defense witnesses must have lit a light - that these guys are *not* pirates. He clearly did not appear to contest the fundamental fact that DeCSS was created for Linux, which he clearly did doubt in the preliminary injunction. once the fact is established that DeCSS was created for Linux, the MPAA arguments fall. And the MPAA reply brief chose to not mention LiViD, so they clearly have not found any good argument. (well, it's hard to argue against facts.) Ingo From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 9 12:15:13 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA16149 for dvd-discuss-outgoing; Wed, 9 Aug 2000 12:15:13 -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 MAA16146 for ; Wed, 9 Aug 2000 12:14:57 -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 MAA12512; Wed, 9 Aug 2000 12:14:30 -0400 (EDT) Message-ID: <399183C3.5512AD92@mit.edu> Date: Wed, 09 Aug 2000 12:16:03 -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 brief online 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: > > the MPAA writes: > > [...] Although > defendants try to excuse their illegal conduct by arguing that DeCSS > was used in the development of an unauthorized Linux DVD player (i.e. > not licensed to decrypt CSS encoded movies), defendants admittedly > were never involved in any such development efforts. > > this borders an outright lie. *Defendants* were not (Mr. Coley is a > journalist), but the creator of DeCSS, Mr. Johansen, was. His > (uncontested) testimony: > > 21 A. Well, after I had created the DeCSS executable, I posted > 22 it on my website, I made an announcement on the LiViD mailing > 23 list. I posted a link to my website. > 24 Q. Why did you make an announcement on the LiViD mailing > 25 list? > 1 A. Well, I wanted them to know that we had successfully > 2 reverse-engineered a DVD player and obtained the algorithm we > 3 needed to make a DVD player. > > i cannot believe the MPAA sincerely hopes to slip these things past Judge > Kaplan... Their reply brief is completely unfocused, full of rhetoric and > it and evades a couple of core issues. What is their goal, are they really > this stupid? > > Ingo Look at it this way. Plaintiffs are being sneaky. They know that they're grabbing rights Congress never intended to give them. Their only hope is to throw up enough smoke and mirrors so that people (especially the judicial system) don't see that. It has worked so far (specifically at the preliminary injunction), so why change horses in mid-stream? And if they can get this verdict to stand up on appeal their lobbying strength should be enough to prevent the DMCA from being revisted... If not, they've spent a lot of money on lawyers and the only net effect was to intimidate some potential producers of unlicensed DVD players for some time. They'd probably still think it's money well-spent. - Ravi Nanavati From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 9 12:18:09 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA16213 for dvd-discuss-outgoing; Wed, 9 Aug 2000 12:18:09 -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 MAA16210 for ; Wed, 9 Aug 2000 12:18:07 -0400 Received: from sites.inka.de (puric.inka.de [212.227.14.17]) by mail.inka.de with esmtp id 13MYXu-0008Pz-00; Wed, 9 Aug 2000 18:17:34 +0200 Received: from localhost by sites.inka.de with local id 13MYXv-0006wz-00; Wed, 9 Aug 2000 18:17:35 +0200 Date: Wed, 9 Aug 2000 18:17:35 +0200 From: Sham Gardner To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] MPAA brief online Message-ID: <20000809181735.A26216@inka.de> References: <4.2.2.20000809104302.025b9250@seltzer.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0i In-Reply-To: ; from mingo@elte.hu on Wed, Aug 09, 2000 at 06:11:18PM +0200 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Wed, Aug 09, 2000 at 06:11:18PM +0200, Ingo Molnar wrote: > i cannot believe the MPAA sincerely hopes to slip these things past Judge > Kaplan... Their reply brief is completely unfocused, full of rhetoric and > it and evades a couple of core issues. What is their goal, are they really > this stupid? I suspect based on the content of the brief and the fact that it was voluntarily released this on their web site that it isn't really attempting to talk to the judge anymore, but to the press and the public. I suspect they don't think their brief will sway the judge anymore one way or the other. Sham -- http://sites.inka.de/risctaker/DeCSS/ "The first speech censored, the first thought forbidden, the first freedom denied, chains us all irrevocably." (Jean-Luc Picard) From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 9 12:19:33 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA16281 for dvd-discuss-outgoing; Wed, 9 Aug 2000 12:19:33 -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 MAA16273 for ; Wed, 9 Aug 2000 12:19:31 -0400 Received: by chiara.elte.hu (Postfix, from userid 17806) id 0C1607E1B5; Wed, 9 Aug 2000 18:19:00 +0200 (CEST) Date: Wed, 9 Aug 2000 18:28:08 +0200 (CEST) From: Ingo Molnar To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] MPAA brief online In-Reply-To: <0008090917420Y.03073@www.rjmconsulting.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, 9 Aug 2000, Russell (James) Miller wrote: > > i cannot believe the MPAA sincerely hopes to slip these things past Judge > > Kaplan... Their reply brief is completely unfocused, full of rhetoric and > > it and evades a couple of core issues. What is their goal, are they really > > this stupid? > > Their goal is to slip these things past Judge Kaplan. They are not > stupid - they are very smart, and devious, and incredibly amoral. Judge Kaplan did not appear to be the kind of judge to let logical traps like this slip past, at least based on my reading of the transcripts. I might be completely wrong. Ingo From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 9 12:32:15 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA16456 for dvd-discuss-outgoing; Wed, 9 Aug 2000 12:32:15 -0400 Received: from mail.glenatl.glenayre.com (mail.glenatl.glenayre.com [157.230.160.51]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id MAA16453 for ; Wed, 9 Aug 2000 12:32:14 -0400 Received: from mindspring.com (mmcgown.glenatl.glenayre.com [157.230.162.136]) by mail.glenatl.glenayre.com (8.10.1/8.10.1) with ESMTP id e79GVHX08176 for ; Wed, 9 Aug 2000 12:31:17 -0400 (EDT) Message-ID: <39918754.92ABB5DE@mindspring.com> Date: Wed, 09 Aug 2000 12:31:17 -0400 From: mickeym X-Mailer: Mozilla 4.61 [en] (WinNT; I) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] MPAA brief online Content-Type: text/plain; charset=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 conclusion of the brief: "According to defendants, the Court cannot eradicate this admittedly illegal device and, therefore, must stand by and allow the widespread dissemination over the Internet of a device whose sole function is the illegal decryption of movies......" Did this really happen? I don't recall any testimony where the defense admitted DeCSS was illegal, nor that the sole function was "illegal decryption" of movies. Mickey From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 9 12:33:50 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA16536 for dvd-discuss-outgoing; Wed, 9 Aug 2000 12:33:50 -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 MAA16532 for ; Wed, 9 Aug 2000 12:33:48 -0400 Received: by chiara.elte.hu (Postfix, from userid 17806) id 491657E1B5; Wed, 9 Aug 2000 18:33:21 +0200 (CEST) Date: Wed, 9 Aug 2000 18:42:29 +0200 (CEST) From: Ingo Molnar To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] infringement In-Reply-To: <4.2.2.20000809104302.025b9250@seltzer.com> Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu the MPAA brief also says: ("It is important to appreciate that these violations are distinct from copyright infringement. The violation occurs with the prohibited acts; it is not necessary to prove that the dissemination of circumvention devices resulted in specific infringements."). If it did, the 1201 anti-trafficking provisions would be meaningless, because a plaintiff would have to wait until copyright infringement has occurred to bring an action, and infringement was already unlawful before the DMCA was enacted. Congress could not have intended a statute enacted after such extensive consideration to be interpreted as mere surplusage to an already existing right to sue for copyright infringement. this argument appears to be completely false as well. Sure Congress can outlaw circumvention devices which cause actual harm, to outlaw the distribution of infringement devices (where distributors do not infringe themselves). Ingo From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 9 12:44:19 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA16604 for dvd-discuss-outgoing; Wed, 9 Aug 2000 12:44:19 -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 MAA16601 for ; Wed, 9 Aug 2000 12:44:16 -0400 Received: by chiara.elte.hu (Postfix, from userid 17806) id 703BA7E1B5; Wed, 9 Aug 2000 18:43:45 +0200 (CEST) Date: Wed, 9 Aug 2000 18:52:53 +0200 (CEST) From: Ingo Molnar To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] MPAA brief online In-Reply-To: <4.2.2.20000809104302.025b9250@seltzer.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 from the MPAA brief again: [...] Plaintiffs have shown: that DeCSS can be used with ease to make flawless, unencrypted copies of DVD movies; [... defendants have shown (through the MPAA's own documents) that DeCSS-ed movies lack the ease of use and features of DVD players ...] that hard drive storage capacity on consumer PCs has been increasing at a rapid rate; [... defendants have shown that the price to store 4+ GB VOB files is multiple of that of an actual DVD, plus the costs of transfer and high-speed internet access ...] that compression utilities such as DivX can be used to reduce the size of decrypted movie files for transmission over the Internet or to make CD-ROM or VCD copies of the movies. [...] [... defendants have shown the severe quality reduction caused by DivX-ing a movie onto a single CD. And putting a DivX-ed movie on two CDs lacks the ease of use of DVDs. ...] [...] Plaintiffs further established that, once a file is compressed by DivX, digital copies of that file can be transferred again and again to anyone connected to the Internet, without the need for the file to ever be compressed again; [... defendants established that this transfer (which has to happen for every would-be-pirate) takes 20 hours and costs alot of money even under the unrealistically high internet speeds the plaintiffs used during their tests ...] that both the compression utility known as DivX and the instructions for utilizing DivX in connection with DeCSS to create transferable movie files are freely available over the Internet; and the speed and ease of transfer of such files is increasing as high-speed Internet connections become available to rapidly increasing numbers of people. [... defendants established that the current estimates are that this will not be possible for the average user within the next 5 years; and that compression technology has a theoritical limit of compression, which is not likely to be improved substantially by future compression methods ...] (is there no rebuttal brief possible?) Ingo From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 9 12:56:34 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA16707 for dvd-discuss-outgoing; Wed, 9 Aug 2000 12:56:34 -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 MAA16704 for ; Wed, 9 Aug 2000 12:56:33 -0400 Received: by chiara.elte.hu (Postfix, from userid 17806) id 470167E1B6; Wed, 9 Aug 2000 18:56:06 +0200 (CEST) Date: Wed, 9 Aug 2000 19:05:14 +0200 (CEST) From: Ingo Molnar To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] MPAA brief online, fair use In-Reply-To: <4.2.2.20000809104302.025b9250@seltzer.com> Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu the MPAA brief choses to not even mention 'fair use'. Not even the word 'fair' is ever mentioned, it must be on a blacklist ;-) all their First Amendment analysis is bogus, because they assume that the only goal of DeCSS is infringement. (which, as a matter of fact, DeCSS isnt) Each and every defense witness declared that they *purchased* several DVDs, and that they never took part in any infringing use. The MPAA has chosen to completely ignore this fact. Ingo From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 9 13:21:24 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA16860 for dvd-discuss-outgoing; Wed, 9 Aug 2000 13:21:24 -0400 Received: from tneu.visi.com (tneu.visi.com [209.98.6.48]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id NAA16857 for ; Wed, 9 Aug 2000 13:21:18 -0400 Received: from tneu.visi.com (tneu.visi.com [163.228.19.198]) by tneu.visi.com (Postfix) with ESMTP id 8596F1BF for ; Wed, 9 Aug 2000 12:08:57 -0500 (CDT) Date: Wed, 9 Aug 2000 12:08:57 -0500 (CDT) From: tim To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] MPAA brief online 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, 9 Aug 2000, Ingo Molnar wrote: > > On Wed, 9 Aug 2000, Russell (James) Miller wrote: > > > > i cannot believe the MPAA sincerely hopes to slip these things past Judge > > > Kaplan... Their reply brief is completely unfocused, full of rhetoric and > > > it and evades a couple of core issues. What is their goal, are they really > > > this stupid? > > > > Their goal is to slip these things past Judge Kaplan. They are not > > stupid - they are very smart, and devious, and incredibly amoral. > > Judge Kaplan did not appear to be the kind of judge to let logical traps > like this slip past, at least based on my reading of the transcripts. I > might be completely wrong. Let's just hope he realizes he's being snowballed. If he does, I would not want to be the MPAA. -- =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- ______ _ __ "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, 9 Aug 2000 13:57:35 -0400 Received: from ip198.bedford7.ma.pub-ip.psi.net ([38.32.77.198]) by relay21.smtp.psi.net with smtp (Exim 3.13 #3) id 13Ma6D-0005i7-00 for dvd-discuss@eon.law.harvard.edu; Wed, 09 Aug 2000 13:57:05 -0400 From: Ron Gustavson To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] MPAA brief online Date: Wed, 09 Aug 2000 13:50:46 -0400 Message-ID: <7463ps0kh7ujq0r4e0b5bvq3pdhej8gcfb@4ax.com> References: <4.2.2.20000809104302.025b9250@seltzer.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 NAA17199 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Wed, 9 Aug 2000 18:52:53 +0200 (CEST), Ingo Molnar wrote: >[... defendants established that the current estimates are that this will >not be possible for the average user within the next 5 years; and that >compression technology has a theoritical limit of compression, which is >not likely to be improved substantially by future compression methods ...] > >(is there no rebuttal brief possible?) As long as the majority of consumers watch their feature-length films not on a wide-screen tv, but a Sony Vaio with 12-14" LCD screen, a DiVX:) version will certainly be competitive with a superior quality DVD rented from Blockbuster--at least to those consumers who can devote 6-8 hours per day trying to download the evening's entertainment. Good luck to them if their chosen ftp site becomes overlaoded with visitors after 4 or 5 hours of downloading. Everyone else is likely to ante up the $3.99. __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 9 14:17:56 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA17539 for dvd-discuss-outgoing; Wed, 9 Aug 2000 14:17:56 -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 OAA17536 for ; Wed, 9 Aug 2000 14:17:54 -0400 Received: by chiara.elte.hu (Postfix, from userid 17806) id 6F8D37E1B5; Wed, 9 Aug 2000 20:17:27 +0200 (CEST) Date: Wed, 9 Aug 2000 20:26:32 +0200 (CEST) From: Ingo Molnar To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] MPAA brief online In-Reply-To: <7463ps0kh7ujq0r4e0b5bvq3pdhej8gcfb@4ax.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, 9 Aug 2000, Ron Gustavson wrote: > As long as the majority of consumers watch their feature-length films > not on a wide-screen tv, but a Sony Vaio with 12-14" LCD screen, a > DiVX:) version will certainly be competitive with a superior quality > DVD rented from Blockbuster--at least to those consumers who can > devote 6-8 hours per day trying to download the evening's > entertainment. [...] downloading a 650MB DivX in 6 hours assumes 256 kbits of RL bandwidth to the internet, which is irrealistic. The reality is more like 56 kbits (optimistic!) RL bandwidth, which takes more than a day to download (assuming no interruption). If you want to download a full-quality DVD then it takes more than a week on 56 kbits, assuming best-case Internet bandwidth. > Good luck to them if their chosen ftp site becomes overlaoded with > visitors after 4 or 5 hours of downloading. Everyone else is likely to > ante up the $3.99. it's not quite the same category to wait *a full day* to download a DivX with clearly inferior quality (running a PC a day consumes power probably on the order of $2-3 already, not counting online costs), compared with going to the DVD rental shop on the way home and renting a full-quality DVD in 2 minutes. it does not matter what bandwidth projections there are for the future. It's not practical here and today, and this also shows that the real intention and goal of DeCSS is to play DVDs, not to pirate them. Ingo From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 9 14:35:16 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA18566 for dvd-discuss-outgoing; Wed, 9 Aug 2000 14:35:16 -0400 Received: from bigbrother.net (root@w131.z208177180.chi-il.dsl.cnc.net [208.177.180.131]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id OAA18563 for ; Wed, 9 Aug 2000 14:35:14 -0400 Received: from localhost (sterno@localhost) by bigbrother.net (8.10.1/8.9.3) with ESMTP id e79IYmH15402 for ; Wed, 9 Aug 2000 13:34:48 -0500 Date: Wed, 9 Aug 2000 13:34:48 -0500 (CDT) From: Steve Stearns To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] MPAA brief online 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, 9 Aug 2000, Ingo Molnar wrote: > downloading a 650MB DivX in 6 hours assumes 256 kbits of RL bandwidth to > the internet, which is irrealistic. The reality is more like 56 kbits > (optimistic!) RL bandwidth, which takes more than a day to download > (assuming no interruption). If you want to download a full-quality DVD > then it takes more than a week on 56 kbits, assuming best-case Internet > bandwidth. 256Kbps is actually quite reallistic. The bandwidth on my DSL is supposedly 768Kbps downstream. Now, granted I don't get that in practice. But typically I can download files at 30-40KBps or 240-320Kbps from an average site. Now, this is with a DSL line and DSL/Cable Modems aren't the majority right now but they are spreading quickly so this doesn't seem like an unreasonable figure to use. ---Steve From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 9 14:35:11 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA18550 for dvd-discuss-outgoing; Wed, 9 Aug 2000 14:35:11 -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 OAA18546 for ; Wed, 9 Aug 2000 14:35:05 -0400 Received: from 209-122-249-65.s573.tnt8.lnhva.md.dialup.rcn.com ([209.122.249.65]) by smtp02.mrf.mail.rcn.net with esmtp (Exim 3.15 #2) id 13MagY-00068r-00 for dvd-discuss@eon.law.harvard.edu; Wed, 09 Aug 2000 14:34:39 -0400 Date: Wed, 09 Aug 2000 14:34:40 EDT From: Jeremy Erwin To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] MPAA brief online 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, 09 Aug 2000, Wendy Seltzer wrote: > A good Washington Post article: > > "Movie piracy is at about the same place that music was a year ago: almost widespread, almost easy. "Give me any computer user running a Windows machine, and within 15 minutes I can have a movie downloading to his machine--and within an hour he'll be watching it," said Bruce Forest, a consultant with the information technology specialist Viant Corp. That's with a high-speed connection; a slow-speed one would still work, but the download would take far longer. Despite the fact that no actual piracy is being alleged in the various DVD trials, Forest said the technology in question--called DeCSS, for Descramble Content Scramble System--is being used to "rip" movies all the time. He estimated there are 200,000 to 300,000 movie downloads a day, both of releases still in theaters and those available on DVD and VHS tape. By the end of next year, he predicted, there will be at least a million." Anybody else think Bruce Forest is pulling numbers out of a hat? From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 9 15:26:30 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA23153 for dvd-discuss-outgoing; Wed, 9 Aug 2000 15:26:30 -0400 Received: from mail2.onetouch.com (mail2.onetouch.com [205.180.182.6]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA23150 for ; Wed, 9 Aug 2000 15:26:27 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id ; Wed, 9 Aug 2000 12:26:26 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1DF6@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] the definition of 'Circumvention' Date: Wed, 9 Aug 2000 12:26:25 -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: Pete Broule [mailto:pbroule@yahoo.com] > Sent: Tuesday, August 08, 2000 5:43 PM > To: dvd-discuss@eon.law.harvard.edu > Subject: RE: [dvd-discuss] the definition of 'Circumvention' > > > > --- Richard Hartman wrote: > > > > > -----Original Message----- > > > From: Pete Broule [mailto:pbroule@yahoo.com] > > > Sent: Tuesday, August 08, 2000 1:40 PM > > > To: dvd-discuss@eon.law.harvard.edu > > > Subject: RE: [dvd-discuss] the definition of 'Circumvention' > > > > > > > > > > lesse ... (can we just snip the "ordinary course" part > > > > for purposes of this discussion?) > > > > (a technological measure) > > > > (effectively controls access to a work) > > > > if (the measure) requires > > > > (the application of > > > > (information, or a process or treatment), > > > > with > > > > (the authorization of the copyright owner) > > > > ) > > > > > > > > I think the important parens are in the same place in my > > > > parsing as yours ... but that means that "with" binds to > > > > "application of". Requiring the authorization for the > > > > act of applying the process. The process itself does not > > > > require the authorization (i.e. as input for a check). > > > > > > That's what I have assumed in this discussion -- that "with the > > > authority" refers to the act of application. But it is not some > > > abstract act of application that must be authorized. It is the > > > act of application required by the TPM that must be authorized. > > > > No ... it is the act of application -of- the TPM (assuming > > that "the TPM" is "the process"). > > That's very different from what 1201(a)(3)(B) says. > I simply cannot see where you are reading it from. > It says, "the measure ... requires the application of [something]." > A simple grammar exercise would be to rewrite this as > "the application of [something] is required by the measure." How about this, a list format: Required by the measure: a) the application of information, process, or treatment b) the authorization of the copyright holder Does that explain clearly what I am seeing. Two separate items, both required. One is a non-technical item. > In the last paragraph I said that the measure must require application > with authority, and you said, "Yeeesss." > If the TPM does not require application of anything with > authorization, > then it does not satisfy the definition of an effective > access control. > > > > > The -law- requires the application of the -TPM- with authorization. > > What law? What paragraph? Clearly, 1201(a)(3)(B) we are currently > discussing does not say anything like "every person shall apply TPMs > with authorization." In fact, 1201(a)(3)(B) cannot, and does not, > require anything at all. It's a definition paragraph; all it does is > define what an effective access control is. > Perhaps. Maybe since the role of the paragraph is to define an effective access control then your reading is more correct. Keeping in mind the definition role of the paragraph it does become more obvious that the intent is that the access control measure itself requires the authorization (i.e. as input, for a validation routine). Emphasising the definintion role of that paragraph may be useful in arguing against the MPAA's reading. -- -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 Aug 9 15:50:04 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA24673 for dvd-discuss-outgoing; Wed, 9 Aug 2000 15:50:04 -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 PAA24670 for ; Wed, 9 Aug 2000 15:50:03 -0400 Received: from ip208.bedford8.ma.pub-ip.psi.net ([38.32.78.208]) by relay20.smtp.psi.net with smtp (Exim 3.13 #3) id 13Mbr6-00009M-00 for dvd-discuss@eon.law.harvard.edu; Wed, 09 Aug 2000 15:49:36 -0400 From: Ron Gustavson To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] MPAA brief online Date: Wed, 09 Aug 2000 15:43:17 -0400 Message-ID: References: <4.2.2.20000809104302.025b9250@seltzer.com> <39917737.7A1B2E8F@mit.edu> <39917CCB.B8494F66@mninter.net> In-Reply-To: <39917CCB.B8494F66@mninter.net> X-Mailer: Forte Agent 1.8/32.548 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 PAA24671 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu [note: this brief is a lot easier to read if you make leftmargin=20 in the body tag.] >Plaintiffs’ "barn" is not empty, and defendants certainly have not proved it > so — although, CSS can continue to work effectively only if trafficking in > DeCSS is enjoined by the courts as a clear violation of the > anti-circumvention statute that Congress enacted. (Plaintiffs respectfully > submit that a better analogy is not to a barn from which the horses have all > been let out, but to defendants’ torpedo attack on plaintiffs’ ship, which may > be leaking, but not fatally so. Plaintiffs believe that the damage can be > patched, and properly have asked the Court for its help in that reparative > work.) Hmmm, plaintiffs' barn is not empty, but their ship is sinking.... Maybe it's their barn that is sinking, because their ship is only leaking to the tune of... >DVD WILL REPLACE VHS IN FIVE YEARS >Research firm sees huge DVD sales, falling prices 8/3/2000 > >By Jonathan K. Matzkin > >NEW YORK, NY, August 3, 2000 -- In March, etown.com reported that the >handwriting was on the wall for the venerable VHS videotape format, as >DVD sales continued to rise faster than any other format in history. http://www.e-town.com/news/article.jhtml?articleID=3201 (article predicts 80% US market penetration by 2005) What's more alarming is that CSS does nothing to disable pirate replicators in the face of a US trade deficit that is over 4% of GDP. The development and adoption of CSS might warrant an FTC investigation. __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 9 16:32:46 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA26243 for dvd-discuss-outgoing; Wed, 9 Aug 2000 16:32:46 -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 QAA26235 for ; Wed, 9 Aug 2000 16:32:30 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id QAA27927 for dvd-discuss@eon.law.harvard.edu; Wed, 9 Aug 2000 16:38:02 -0400 Date: Wed, 9 Aug 2000 16:37:57 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] keys to the kingdom Message-ID: <20000809163757.C27342@eldritchpress.org> Mime-Version: 1.0 Content-Type: text/plain; charset=iso-8859-1 Content-Transfer-Encoding: 8bit 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 >From the MPAA brief: The question presented is not whether computer code *can* be sufficiently expressive to warrant First Amendment protection. See Junger v. Daley, 209 F.3d 481 (6th Cir. 2000); Bernstein v. United States Dep?t of Justice, 176 F.3d 1132, 1141 (9th Cir.) (holding that encryption software in source code form can be constitutionally protected expression, but expressing no opinion with respect to object code), reh?g en banc granted, op. withdrawn, 192 F.3d 1308 (9th Cir. 1999). Rather, the proper question is whether DeCSS - particularly in its executable form, but also in any other form posted or sought to be posted by defendants - is sufficiently expressive to warrant First Amendment protection. The testimony was virtually unanimous that DeCSS is simply a tool for decrypting DVDs - that it has no expressive content itself. DeCSS is a decryption device and, in that respect, is functionally indistinguishable from a key or "virtual machine." See Universal City Studios, 82 F. Supp. 2d at 219 n.30 (citing R. Polk Wagner, The Medium Is The Mistake: The Law of Software for the First Amendment, 51 Stan. L. Rev. 387 (1999); Mark A. Lemley & Eugene Volakh, Freedom of Speech and Injunctions In Intellectual Property Cases, 48 Duke L.J. 147, 236-37 (1998)). It is significant that Congress itself considered decrypting technologies and devices to be the equivalent of modern "keys." See S. Rep. No. 105-190 at 11. If, as plaintiffs submit, the unauthorized provision of an automobile key is proscribable and unprotected by the First Amendment, it is hard to see why any different analysis should apply merely because the decrypting technology defendants are providing happens to have been configured as software instead of hardware. The testimony of Professor Touretzky affords no convincing basis otherwise, since the question of whether DeCSS is "speech" or "expressive conduct" for First Amendment purposes presents a question of law, not one of computer science or philosophy. At bottom, his argument would establish that a housekey is speech as well (as it communicates information to tumblers, which could as well be communicated to humans in various other languages or ways) - a conclusion that may be a tour de force but would not make house keys eligible for First Amendment protection. Dr. Touretzky?s view is based on his puzzlement that the Court could "decide to ban, say, the C source code but not discussion of the algorithm," since "in [his] mind these things are all equivalent." (Tr. 1068:19-1069:2 (Touretzky)). With respect, the law does not treat instructions to machines in the same way as it treats political or academic discussions of those instructions, just as it distinguishes between illicit dealing in firearms and literary discussion of committing a crime. No matter how clever one may be in converting code to English or translating it into any other language, DeCSS itself (whether as an executable utility or in source code) is still just a set of unscrambling instructions to a machine, as inexpressive as the numeric combination to the locks to a bank vault. See also Universal City Studios, 82 F. Supp. 2d at 222 ("Executable computer code of the type at issue in this case does little to further traditional First Amendment interests.") And since Professor Touretzky?s testimony established that the source code can be readily converted to object code which, in turn, can be used to create the executable utility, the DeCSS source code is just as much a "technology," "device" or "component, or part thereof" within the meaning of the DMCA as is the executable utility. See 17 U.S.C. § 1201(a)(2). MPAA see DeCSS as "keys" similar to car keys or house keys or the numeric combination to the locks to a bank vault, because DeCSS is a "decryption device" and, "in that respect, is functionally indistinguishable from a key or 'virtual machine.'" Although "unauthorized provision of an automobile key is proscribable," (by tautology?) I don't see how publication of the "numeric combination to the locks to a bank vault" could be proscribable before any First Amendment scrutiny. For example, under this argument a newspaper could be restrained from publishing the combination of the safe in which Dillinger is supposed to have stored currency, simply because the information *might* have some use that *might* be illegal under law. Nor do I see that "provision of an automobile key" is a Constitutionally protected exclusive right of the automobile manufacturers. (I am glad that defense counsel included this paragraph toward the end, which allows later raising of the antitrust arguments hashed out on this list:) This brief addresses several of the issues the Court must consider in deciding this case, as well as specific issues the Court raised at trial. Given the space limitations, however, defendants have not attempted to brief all of the potential issues that may arise on appeal and do not waive their rights to raise all such issues on appeal. Additionally, because the trial concluded only two weeks ago, this brief assumes the Court's familiarity with the facts and with the memoranda of law already before the Court. Nor do I see how plaintiffs can assert that they retain control over all use of the keys after they sell the title keys and player keys to defendants. As has been noted here, "fair use" is ignored by plaintiffs. There are so many reasons Judge Kaplan can find to refuse to issue a declaratory judgment. I hope he takes the opportunity to compare these briefs and throw out the DMCA as well. -- "Eric" Eric Eldred Eldritch Press mailto:Eldred@EldritchPress.org http://www.eldritchpress.org/EricEldred.vcf From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 9 17:19:00 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA28002 for dvd-discuss-outgoing; Wed, 9 Aug 2000 17:19:00 -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 RAA27999 for ; Wed, 9 Aug 2000 17:19:00 -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 RAA14481 for ; Wed, 9 Aug 2000 17:18:34 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id RAA23875; Wed, 9 Aug 2000 17:18:33 -0400 (EDT) Date: Wed, 9 Aug 2000 17:18:33 -0400 (EDT) Message-Id: <200008092118.RAA23875@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] MPAA brief online In-Reply-To: <4.2.2.20000809104302.025b9250@seltzer.com> References: <4.2.2.20000809104302.025b9250@seltzer.com> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Wendy Seltzer writes: > We still don't get an explanation of > their authority model -- they take it as a given that CSS is an effective > TPM and that DeCSS plainly operates "without the authority of the copyright > owner." Hmmm... we've been chewing over authority models for some time, and seem to have come to one of two conclusions, though we don't all agree to both: 1) If the law is read to support their authority model, and the implications of that reading are drawn out, the law (at least under that reading) has deep constitutional problems. 2) Under close analysis, there may be readings of the law which are not so problematic, but under those readings, the studios have no case at all. Either way, they have nothing to gain and much to lose by examining the question of authority models in detail. So, in retrospect, it should be less of a surprise that they rely on the kind of "analysis" that Gold presented at the pretrial hearing (roughly: "it says right in the law that decryption without authority is circumvention --- 1201(a)(3)(A) --- and we haven't authorized this thing, so there you go"). They're better off *avoiding* all analysis of authority than they would be presenting one. Pity that we don't get a reply brief... rst From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 9 17:59:52 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA30478 for dvd-discuss-outgoing; Wed, 9 Aug 2000 17:59:52 -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 RAA30475 for ; Wed, 9 Aug 2000 17:59:51 -0400 Message-ID: <20000809215855.28280.qmail@web510.mail.yahoo.com> Received: from [131.44.121.4] by web510.mail.yahoo.com; Wed, 09 Aug 2000 14:58:55 PDT Date: Wed, 9 Aug 2000 14:58:55 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] MPAA brief online To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-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: > Hmmm... we've been chewing over authority models for some time, and > seem to have come to one of two conclusions, though we don't all > agree > to both: > > 1) If the law is read to support their authority model, and the > implications of that reading are drawn out, the law (at least > under that reading) has deep constitutional problems. > > 2) Under close analysis, there may be readings of the law which > are not so problematic, but under those readings, the studios > have no case at all. > > Either way, they have nothing to gain and much to lose by examining > the question of authority models in detail. So, in retrospect, it > should be less of a surprise that they rely on the kind of "analysis" > that Gold presented at the pretrial hearing (roughly: "it says right > in the law that decryption without authority is circumvention --- > 1201(a)(3)(A) --- and we haven't authorized this thing, so there you > go"). They're better off *avoiding* all analysis of authority than > they would be presenting one. I think you nailed it. It'll be interesting to see what Kaplan does with this. Will he try to provide the Plaintiff's with a rebuttal (ie do their job for them) or will he adopt their head-in-the-sand approach and simply ignore the issue. __________________________________________________ Do You Yahoo!? Kick off your party with Yahoo! Invites. http://invites.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 9 19:35:15 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA32703 for dvd-discuss-outgoing; Wed, 9 Aug 2000 19:35:15 -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 TAA32700 for ; Wed, 9 Aug 2000 19:35:14 -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 TAA12435 for ; Wed, 9 Aug 2000 19:34:49 -0400 Date: Wed, 9 Aug 2000 19:34:49 -0400 (EDT) From: Ole Craig To: DVD discussion Subject: [dvd-discuss] Stuff online for SDNY through uscourts.gov Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Thought some here might be interested. (No, before you get anxious, there is no decision on the case itself as of yet, at least not from this venue.) Selected documents authored by Kaplan in SDNY -- including opinions, orders, and rulings he has made in this case -- are available via "courtweb" by navigating through the links at http://www.nysd.uscourts.gov/courtweb/. The relevant case # is 00-cv-00277. 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 Aug 9 19:36:22 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA00317 for dvd-discuss-outgoing; Wed, 9 Aug 2000 19:36:22 -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 TAA00314 for ; Wed, 9 Aug 2000 19:36:21 -0400 Message-ID: <20000809233525.21676.qmail@web514.mail.yahoo.com> Received: from [64.81.25.36] by web514.mail.yahoo.com; Wed, 09 Aug 2000 16:35:25 PDT Date: Wed, 9 Aug 2000 16:35:25 -0700 (PDT) From: Bryan Taylor Subject: [dvd-discuss] Defense brief To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-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 a part of the 2600 brief that I thought was particularly good: One might think that the buyer does not have the right to decrypt the work (e.g. in order to view it) because the DMCA withholds that authority. But decryption and circumvention are two different things. The DMCA does not outlaw decryption; it only outlaws "circumventing" the encryption. Decrypting a work with the authority of the copyright holder is legal under the DMCA. The definition of circumvention reveals that to circumvent, one must be acting without the authority of the copyright holder. Any statement that a buyer does not have the authority to decrypt, because the DMCA prohibits decryption without authority, is a circular argument and thus invalid. Plaintiffs would have the Court conflate "decryption" with "circumvention," and similarly conflate the DMCA with the DVD CCA license. The above analysis makes it clear that what controls consumers is the Copyright Act, not the DVD CCA license, and that neither the original Copyright Act nor the DMCA prohibits consumers from accessing or decrypting a work they have purchased. Both are *very* concise statements of lines of reasoning that we've developed here. __________________________________________________ Do You Yahoo!? Kick off your party with Yahoo! Invites. http://invites.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 9 23:12:42 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA07483 for dvd-discuss-outgoing; Wed, 9 Aug 2000 23:12:42 -0400 Received: from tbird.iworld.com ([63.236.72.237]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id XAA07473 for ; Wed, 9 Aug 2000 23:12:41 -0400 Received: (from nobody@localhost) by tbird.iworld.com (8.10.2/8.10.2) id e7A3C0Z16819; Wed, 9 Aug 2000 23:12:00 -0400 Date: Wed, 9 Aug 2000 23:12:00 -0400 Message-Id: <200008100312.e7A3C0Z16819@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] MPAA brief online Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Steve Stearns wrote: >On Wed, 9 Aug 2000, Ingo Molnar wrote: > >256Kbps is actually quite reallistic. The bandwidth on my DSL is >supposedly 768Kbps downstream. Now, granted I don't get that in >practice. But typically I can download files at 30-40KBps or 240-320Kbps >from an average site. Now, this is with a DSL line and DSL/Cable Modems >aren't the majority right now but they are spreading quickly so this >doesn't seem like an unreasonable figure to use. 5 million Americans will have DSL access. The full access to DSL won't happen until perhaps ten years from now. This is something that keeps coming up at work in discussions about teaching CEOs why NOT to use using high bandwidth streams to present information to consumers. Phone companies are dropping the ball on installing repeaters left and right. For cable it may be more reasonable, yet I've noticed servers place caps on per download bandwidth. Thank god for home area networks. >---Steve > 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 Wed Aug 9 23:35:51 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA10256 for dvd-discuss-outgoing; Wed, 9 Aug 2000 23:35:51 -0400 Received: from tbird.iworld.com ([63.236.72.237]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id XAA10253 for ; Wed, 9 Aug 2000 23:35:49 -0400 Received: (from nobody@localhost) by tbird.iworld.com (8.10.2/8.10.2) id e7A3Z9D23318; Wed, 9 Aug 2000 23:35:09 -0400 Date: Wed, 9 Aug 2000 23:35:09 -0400 Message-Id: <200008100335.e7A3Z9D23318@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] MPAA brief online Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Jeremy Erwin wrote: > > > >On Wed, 09 Aug 2000, Wendy Seltzer wrote: > >> A good Washington Post article: >> >> > He estimated there are 200,000 to 300,000 movie downloads a day, >both of releases still in theaters and those available on DVD and VHS tape. >By the end of next year, he predicted, there will be at least a million." > >Anybody else think Bruce Forest is pulling numbers out of a hat? 200,000 movies/day x 650MB/movie = 1.3 Terabytes per day That leaves how much for banner ads, internet radio, purchases and what not? I think this guy's got diarhea. 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 Wed Aug 9 23:49:07 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA11313 for dvd-discuss-outgoing; Wed, 9 Aug 2000 23:49:07 -0400 Received: from mercury.clearway.com (c100.clearway.com [199.103.231.100]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id XAA11310 for ; Wed, 9 Aug 2000 23:49:07 -0400 Received: by c100.clearway.com with Internet Mail Service (5.5.2650.21) id ; Wed, 9 Aug 2000 23:52:24 -0400 Message-ID: From: Leland Ray To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] MPAA brief online Date: Wed, 9 Aug 2000 23:52:24 -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 After reading both the MPAA brief and the EFF brief, I sure hope that in any appeal the serious space limitations imposed by the court is mentioned. I think both sides could have used additional space. From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 9 23:55:21 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA11418 for dvd-discuss-outgoing; Wed, 9 Aug 2000 23:55:21 -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 XAA11415 for ; Wed, 9 Aug 2000 23:55:20 -0400 Received: from mit.edu (h0050da62b39d.ne.mediaone.net [24.147.219.153]) by chmls06.mediaone.net (8.8.7/8.8.7) with ESMTP id XAA26118; Wed, 9 Aug 2000 23:54:53 -0400 (EDT) Message-ID: <399227EA.3E7D3966@mit.edu> Date: Wed, 09 Aug 2000 23:56:26 -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: Re: [dvd-discuss] MPAA brief online 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 Leland Ray wrote: > > After reading both the MPAA brief and the EFF brief, I sure hope > that in any appeal the serious space limitations imposed by > the court is mentioned. I think both sides could have used > additional space. Don't forget the time pressures in the trial as well. I would argue they were a much greater burden on defendants than plaintiffs because of the obvious difference in the scale of their resources. In fact, given resource disparity I'm surprised at how sloppy plaintiffs' case looks at times. - Ravi Nanavati From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 10 00:09:52 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA11647 for dvd-discuss-outgoing; Thu, 10 Aug 2000 00:09:52 -0400 Received: from tbird.iworld.com ([63.236.72.237]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id AAA11644 for ; Thu, 10 Aug 2000 00:09:50 -0400 Received: (from nobody@localhost) by tbird.iworld.com (8.10.2/8.10.2) id e7A494C29711; Thu, 10 Aug 2000 00:09:04 -0400 Date: Thu, 10 Aug 2000 00:09:04 -0400 Message-Id: <200008100409.e7A494C29711@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] the definition of 'Circumvention' Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Ingo Molnar wrote: >On Sat, 5 Aug 2000, Jim Taylor wrote: > >> >> You could not get PGP banned, because it clearly has other uses. [...] >> > >> >no. The decryption part of PGP has a sole purpose: to decrypt an encrypted >> >email. So in this context, PGP's decryption part circumvents. It clearly >> >works for many different copyright holders, but it takes just one >> >copyright holder to complain under the DMCA, and PGP's decryption >> >functionality becomes a circumvention device. >> >> No, no, no. You can't turn something into a circumvention device! The >> DMCA is very clear about this. I need to decrypt emails sent to me. PGP is a public key system. I have a related but weakly linked private by whjich I decrypt that which was encrypted using the public key. This isn't your average one key for every hole system. >> It talks about a device that is >> "primarily designed or produced for the purpose of circumventing." PGP >> was not designed for this. Using it for circumvention does not change >> anything. > >this depends on the definition of 'circumvention'. PGP might not have been >intentionally designed to 'circumvent', but it was designed to 'decrypt >regardless of the authority of the copyright holder', so per definition >it's designed to 'circumvent'. I couldnt agree more with you that this is >stupid, but this is what the definition of circumvention means. (PGP was >designed before the DMCA, but you get the point - the law say *nothing* >about what the time-scope of authority is, ie. if authority or >disauthority comes *after* a device has been designed, it does not mean >the device does not circumvent.) PGP can only decrypt and encrypt using separate keys for both functions. The circumventer would have to use a "tactic" like Repeated Decryption to get the message. Problem: repeated decryption tools are used daily by security professionals to test their security systems. You can disauthorize WHO can use a tool but not what TOOL they can use. By that account everything is a circumvention device. Now I agree that everything and absolutely everything can be abused. Go change the laws of physics if you don't like my using a butter knife in lieu of a screwdriver or a credit card between the in lieu of a key. Last, I heard every tow truck company supplies their employees with a jimmy. > >> >PGP itself (the package) has other, encryption and key management >> >functionality as well (just as DeCSS has 'save to disk' and 'display a >> >messages' parts - this is even more visible in the LiViD case), but this >> >does not change the fact that the decryption part's only purpose is to >> >decrypt. DeCSS's CSS parts have one purpose: to decrypt. (obviously) >> >> No. CSS has a vital purpose other than to decrypt. That's the >> difference. CSS includes multiple keys, ways of hiding keys on a disc, >> algorithms for authentication, etc. All of this is designed to create >> a system with one and only one intent: protect content on DVD. Thus it >> gets special treatment under the DMCA. > >i said "DeCSS's CSS parts", not "CSS as a whole". The legal question is, >can you 'circumvent' a (substantially-) sub-set of "CSS"? > > Ingo > 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 Thu Aug 10 00:13:50 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA11842 for dvd-discuss-outgoing; Thu, 10 Aug 2000 00:13:50 -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 AAA11838 for ; Thu, 10 Aug 2000 00:13:39 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id AAA28144 for dvd-discuss@eon.law.harvard.edu; Thu, 10 Aug 2000 00:19:17 -0400 Date: Thu, 10 Aug 2000 00:19:11 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] MPAA brief online Message-ID: <20000810001911.B27936@eldritchpress.org> References: <200008100312.e7A3C0Z16819@tbird.iworld.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <200008100312.e7A3C0Z16819@tbird.iworld.com>; from rmarian@linuxstart.com on Wed, Aug 09, 2000 at 11:12:00PM -0400 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Wed, Aug 09, 2000 at 11:12:00PM -0400, Rares Marian wrote: > Steve Stearns wrote: > > >On Wed, 9 Aug 2000, Ingo Molnar wrote: > > > >256Kbps is actually quite reallistic. The bandwidth on my DSL is > >supposedly 768Kbps downstream. Now, granted I don't get that in > >practice. But typically I can download files at 30-40KBps or 240-320Kbps > >from an average site. Now, this is with a DSL line and DSL/Cable Modems > >aren't the majority right now but they are spreading quickly so this > >doesn't seem like an unreasonable figure to use. > > 5 million Americans will have DSL access. The full access to DSL won't happen until perhaps ten years from now. > > This is something that keeps coming up at work in discussions about teaching CEOs why NOT to use using high bandwidth streams to present information to consumers. Phone companies are dropping the ball on installing repeaters left and right. > > For cable it may be more reasonable, yet I've noticed servers place caps on per download bandwidth. Thank god for home area networks. > Yes, as you point out, bandwidth is asymmetrical--downloads are intentionally faster than uploads. Guess what, the media giants that own both the movie studios and the "broadband" networks want to use the increased download speed to allow you to rent pay-per-view digital content from them. They have ways to prevent you from uploading content that will interfere with their business plans. From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 10 00:24:24 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA11938 for dvd-discuss-outgoing; Thu, 10 Aug 2000 00:24:24 -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 AAA11921 for ; Thu, 10 Aug 2000 00:24:12 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id AAA28185 for dvd-discuss@eon.law.harvard.edu; Thu, 10 Aug 2000 00:29:49 -0400 Date: Thu, 10 Aug 2000 00:29:44 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] MPAA brief online Message-ID: <20000810002944.A28162@eldritchpress.org> References: <200008100335.e7A3Z9D23318@tbird.iworld.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <200008100335.e7A3Z9D23318@tbird.iworld.com>; from rmarian@linuxstart.com on Wed, Aug 09, 2000 at 11:35:09PM -0400 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Wed, Aug 09, 2000 at 11:35:09PM -0400, Rares Marian wrote: > Jeremy Erwin wrote: > > > > > > > > >On Wed, 09 Aug 2000, Wendy Seltzer wrote: > > > >> A good Washington Post article: > >> > >> > > He estimated there are 200,000 to 300,000 movie downloads a day, > >both of releases still in theaters and those available on DVD and VHS tape. > >By the end of next year, he predicted, there will be at least a million." > > > >Anybody else think Bruce Forest is pulling numbers out of a hat? > > 200,000 movies/day x 650MB/movie = 1.3 Terabytes per day > > That leaves how much for banner ads, internet radio, purchases and what not? > > I think this guy's got diarhea. Nah, he is just trying to find work for his company, so they can pay for their new huge office space in Culver City: http://viant.com/news/press/20000724.html Probably they didn't think to put in a separate T3 line for this guy and he is trying to persuade his boss he needs one. Of course, if he is called to testify as an "expert" he suddenly will develop the same memory problems that the rest of them have come down with, confusing bytes with bits and and DeCSS with Napster and all that. From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 10 00:24:11 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA11916 for dvd-discuss-outgoing; Thu, 10 Aug 2000 00:24:11 -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 AAA11913 for ; Thu, 10 Aug 2000 00:24:10 -0400 Received: from ppp.anonymizer.com (c6T2-155.015.popsite.net [216.126.189.155]) by cyberpass.net (8.8.8/8.7.3) with ESMTP id VAA13204 for ; Wed, 9 Aug 2000 21:25:50 -0700 (PDT) Message-Id: <4.3.2.7.2.20000809211508.00ac94c0@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, 09 Aug 2000 21:23:33 -0700 To: From: "James S. Tyre" Subject: RE: [dvd-discuss] MPAA brief online 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 11:52 PM 8/9/2000 -0400, Leland Ray wrote: >After reading both the MPAA brief and the EFF brief, I sure hope >that in any appeal the serious space limitations imposed by >the court is mentioned. I think both sides could have used >additional space. -0- chance. Page limits have become ever more common, there is no due process right to write as much as one wants. The courts are even on to *some* of the tricks. If one uses a non-proportionate font, many courts will require a word count, not just a page limit. MS Word does not count words in footnotes and so forth (Corel Wordperfect does), so a clever lawyer could stick lots of stuff in notes, have Word generate a number count which is misleadingly low. Most courts now know of this, frown on it. Ain't tellin' the tricks they're not yet on to. ;-) -------------------------------------------------------------------- James S. Tyre mailto:jstyre@jstyre.com 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 Aug 10 00:39:06 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA12173 for dvd-discuss-outgoing; Thu, 10 Aug 2000 00:39:06 -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 AAA12170 for ; Thu, 10 Aug 2000 00:39:05 -0400 Received: from ppp.anonymizer.com (c6T2-155.015.popsite.net [216.126.189.155]) by cyberpass.net (8.8.8/8.7.3) with ESMTP id VAA15492 for ; Wed, 9 Aug 2000 21:40:53 -0700 (PDT) Message-Id: <4.3.2.7.2.20000809213420.00aa9960@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, 09 Aug 2000 21:38:37 -0700 To: dvd-discuss@eon.law.harvard.edu From: "James S. Tyre" Subject: Re: [dvd-discuss] MPAA brief online In-Reply-To: <20000810002944.A28162@eldritchpress.org> References: <200008100335.e7A3Z9D23318@tbird.iworld.com> <200008100335.e7A3Z9D23318@tbird.iworld.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 12:29 AM 8/10/2000 -0400, Eric Eldred wrote: >On Wed, Aug 09, 2000 at 11:35:09PM -0400, Rares Marian wrote: > > > > > I think this guy's got diarhea. > >Nah, he is just trying to find work for his >company, so they can pay for their new huge >office space in Culver City: > >http://viant.com/news/press/20000724.html Hmm, walking distance from where I live. ;-) [Much of the L.A.-based entertainment biz is *not* in Hollyweird, it's right here in Culver City. And my sig is not inaccurate. Like all good Angelinos, I drive a lot.] -------------------------------------------------------------------- James S. Tyre mailto:jstyre@jstyre.com 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 Aug 10 01:01:24 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id BAA12530 for dvd-discuss-outgoing; Thu, 10 Aug 2000 01:01:24 -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 BAA12520 for ; Thu, 10 Aug 2000 01:01:12 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id BAA28237 for dvd-discuss@eon.law.harvard.edu; Thu, 10 Aug 2000 01:06:50 -0400 Date: Thu, 10 Aug 2000 01:06:41 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] more headaches for Proskauer Rose Message-ID: <20000810010641.A28199@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://news.cnet.com/news/0-1005-200-2483414.html "Scour said today that trial lawyer Fred Bartlit of the Chicago firm Bartlit Beck Herman Palenchar & Scott will head its legal team, assisted by Harvard Law School professor Arthur Miller and intellectual property rights author Peter Toren." The article goes on to cite support from Nimmer, who was unable to help Scour because of conflicts representing other entertainment firms. Proskauer Rose evidently will depend again on the DMCA and assert that Scour cannot claim to be an ISP immune from contributory infringement. Sounds like attorney Charles Sims will be busy on both coasts. Miller has also stepped into the suit Eldred v Reno, but on the side of the publishers and government. -- "Eric" Eric Eldred Eldritch Press mailto:Eldred@EldritchPress.org http://www.eldritchpress.org/EricEldred.vcf From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 10 01:12:26 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id BAA12653 for dvd-discuss-outgoing; Thu, 10 Aug 2000 01:12:26 -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 BAA12650 for ; Thu, 10 Aug 2000 01:12:25 -0400 Received: from ppp.anonymizer.com (c6T2-155.015.popsite.net [216.126.189.155]) by cyberpass.net (8.8.8/8.7.3) with ESMTP id WAA19693; Wed, 9 Aug 2000 22:14:13 -0700 (PDT) Message-Id: <4.3.2.7.2.20000809220606.00ac6340@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, 09 Aug 2000 22:11:55 -0700 To: dvd-discuss@eon.law.harvard.edu, dvd-discuss@eon.law.harvard.edu From: "James S. Tyre" Subject: Re: [dvd-discuss] more headaches for Proskauer Rose In-Reply-To: <20000810010641.A28199@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 01:06 AM 8/10/2000 -0400, Eric Eldred wrote: >http://news.cnet.com/news/0-1005-200-2483414.html > >"Scour said today that trial lawyer Fred Bartlit >of the Chicago firm Bartlit Beck Herman Palenchar & >Scott will head its legal team Excellent. Fred probably is one of the two or three best trial lawyers in the land. Despite being in his sixties (I think) he personally saw to it that his firm has one of the most well thought out high tech operations among all law firms. Many firms design their systems on what he did 6 or 7 years ago, while he's moved on. No guarantee of success, of course, but nice. -------------------------------------------------------------------- James S. Tyre mailto:jstyre@jstyre.com 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 Aug 10 02:00:56 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id CAA13237 for dvd-discuss-outgoing; Thu, 10 Aug 2000 02:00:56 -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 CAA13234 for ; Thu, 10 Aug 2000 02:00:36 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id CAA28282 for dvd-discuss@eon.law.harvard.edu; Thu, 10 Aug 2000 02:06:06 -0400 Date: Thu, 10 Aug 2000 02:06:01 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] EC case for restraint of trade? Message-ID: <20000810020601.B28199@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 Recent Slashdot posters have referred to a possible case where DMCA differences with WIPO and the DVD region coding might be considered by the European Community to be in restraint of free international trade. The U.S. is one of a very few "intellectual property" exporters, and has sought by local legislation to preserve the advantages of content producers and distributors such as the music and movie industries, relative to other countries that import much U.S. goods. In the instance of the Copyright Term Extension Act of 1998, the EC has judged one provision, allowing bar and restaurant owners in the U.S. to escape royalty payments, in restraint of trade, since European music producers are not being paid thereby (this is currently under appeal). I wonder if a similar situation might be investigated with the movie industry, where U.S. producers might be similarly in restraint of trade by combining with player manufacturers to control the market and distribution channels. Anybody have any ideas about this thought? -- "Eric" Eric Eldred Eldritch Press mailto:Eldred@EldritchPress.org http://www.eldritchpress.org/EricEldred.vcf From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 10 11:15:10 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA20263 for dvd-discuss-outgoing; Thu, 10 Aug 2000 11:15:10 -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 UAA05636 for ; Wed, 9 Aug 2000 20:44:30 -0400 Received: from mail.dfrc.nasa.gov by mailhub.dfrc.nasa.gov with ESMTP; Wed, 9 Aug 2000 17:43:37 -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 ; Wed, 9 Aug 2000 17:43:34 -0700 Message-Id: <4.1.20000809174153.00a046e0@mail.dfrc.nasa.gov> X-Sender: richard_hecker@mail.dfrc.nasa.gov X-Mailer: QUALCOMM Windows Eudora Pro Version 4.1 Date: Wed, 09 Aug 2000 17:50:14 -0700 To: dvd-discuss@eon.law.harvard.edu From: "Richard A. Hecker" Subject: Re: [dvd-discuss] MPAA brief online 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 UAA05637 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu >>Plaintiffs’ "barn" is not empty, and defendants certainly have not proved it >> so — although, CSS can continue to work effectively only if trafficking in >> DeCSS is enjoined by the courts as a clear violation of the >> anti-circumvention statute that Congress enacted. (Plaintiffs respectfully > submit that a better analogy is not to a barn from which the horses have all >> been let out, but to defendants’ torpedo attack on plaintiffs’ ship, which may >> be leaking, but not fatally so. Plaintiffs believe that the damage can be >> patched, and properly have asked the Court for its help in that reparative >> work.) >Hmmm, plaintiffs' barn is not empty, but their ship is sinking.... >Maybe it's their barn that is sinking, because their ship is >only leaking to the tune of... Actually, I like their new analogy. The ship is called the Titanic, and the torpedo is actually an iceberg. These lawyers are like the musicians who dutifully played on in hope that the passengers would be content to listen to their music ;-) Richard From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 10 11:19:46 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA20433 for dvd-discuss-outgoing; Thu, 10 Aug 2000 11:19:46 -0400 Received: from mzdy17.allegro.net (mzdy17.allegro.net [204.253.83.87]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id LAA20430 for ; Thu, 10 Aug 2000 11:19:43 -0400 Received: from inet.skadden.com (unverified) by mzdy17.allegro.net (Content Technologies SMTPRS 2.0.15) with SMTP id for ; Thu, 10 Aug 2000 11:15:56 -0400 Received: from Allegro_Inet-Message_Server by inet.skadden.com with Novell_GroupWise; Thu, 10 Aug 2000 11:15:45 -0400 Message-Id: X-Mailer: Novell GroupWise 5.5.2 Date: Thu, 10 Aug 2000 11:18:43 -0400 From: "Jose Esteves" To: Subject: [dvd-discuss] I wi MIME-Version: 1.0 Content-Type: text/plain; charset=ISO-8859-7 Content-Disposition: inline Content-Transfer-Encoding: 8bit X-MIME-Autoconverted: from quoted-printable to 8bit by eon.law.harvard.edu id LAA20431 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I will be on vacation from Thursday, August 10, 2000 through Sunday, August 20, 2000. I likely will not have access to e-mail during this time. I will be checking voicemail periodically (212.735.2948). If you need immediate assistance during this time, please contact Stuart Levi at 212.735.2750. >>> "dvd-discuss@eon.law.harvard.edu" 08/09/00 20:50 >>> >>Plaintiffs' "barn" is not empty, and defendants certainly have not proved it >> so ¯ although, CSS can continue to work effectively only if trafficking in >> DeCSS is enjoined by the courts as a clear violation of the >> anti-circumvention statute that Congress enacted. (Plaintiffs respectfully > submit that a better analogy is not to a barn from which the horses have all >> been let out, but to defendants' torpedo attack on plaintiffs' ship, which may >> be leaking, but not fatally so. Plaintiffs believe that the damage can be >> patched, and properly have asked the Court for its help in that reparative >> work.) >Hmmm, plaintiffs' barn is not empty, but their ship is sinking.... >Maybe it's their barn that is sinking, because their ship is >only leaking to the tune of... Actually, I like their new analogy. The ship is called the Titanic, and the torpedo is actually an iceberg. These lawyers are like the musicians who dutifully played on in hope that the passengers would be content to listen to their music ;-) Richard From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 10 11:23:27 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA20560 for dvd-discuss-outgoing; Thu, 10 Aug 2000 11:23:27 -0400 Received: from mzdy03.allegro.net (mailzone03.allegro.net [204.253.83.123]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id LAA20557 for ; Thu, 10 Aug 2000 11:23:26 -0400 Received: from inet.skadden.com (unverified) by mzdy03.allegro.net (Content Technologies SMTPRS 2.0.15) with SMTP id for ; Thu, 10 Aug 2000 11:20:02 -0400 Received: from Allegro_Inet-Message_Server by inet.skadden.com with Novell_GroupWise; Thu, 10 Aug 2000 11:19:21 -0400 Message-Id: X-Mailer: Novell GroupWise 5.5.2 Date: Thu, 10 Aug 2000 11:22:26 -0400 From: "Jose Esteves" To: Subject: [dvd-discuss] I wi MIME-Version: 1.0 Content-Type: text/plain; charset=ISO-8859-1 Content-Disposition: inline Content-Transfer-Encoding: 8bit X-MIME-Autoconverted: from quoted-printable to 8bit by eon.law.harvard.edu id LAA20558 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I will be on vacation from Thursday, August 10, 2000 through Sunday, August 20, 2000. I likely will not have access to e-mail during this time. I will be checking voicemail periodically (212.735.2948). If you need immediate assistance during this time, please contact Stuart Levi at 212.735.2750. >>> "dvd-discuss@eon.law.harvard.edu" 08/10/00 11:18 >>> I will be on vacation from Thursday, August 10, 2000 through Sunday, August 20, 2000. I likely will not have access to e-mail during this time. I will be checking voicemail periodically (212.735.2948). If you need immediate assistance during this time, please contact Stuart Levi at 212.735.2750. >>> "dvd-discuss@eon.law.harvard.edu" 08/09/00 20:50 >>> >>Plaintiffs' "barn" is not empty, and defendants certainly have not proved it >> so * although, CSS can continue to work effectively only if trafficking in >> DeCSS is enjoined by the courts as a clear violation of the >> anti-circumvention statute that Congress enacted. (Plaintiffs respectfully > submit that a better analogy is not to a barn from which the horses have all >> been let out, but to defendants' torpedo attack on plaintiffs' ship, which may >> be leaking, but not fatally so. Plaintiffs believe that the damage can be >> patched, and properly have asked the Court for its help in that reparative >> work.) >Hmmm, plaintiffs' barn is not empty, but their ship is sinking.... >Maybe it's their barn that is sinking, because their ship is >only leaking to the tune of... Actually, I like their new analogy. The ship is called the Titanic, and the torpedo is actually an iceberg. These lawyers are like the musicians who dutifully played on in hope that the passengers would be content to listen to their music ;-) Richard From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 10 11:26:57 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA20684 for dvd-discuss-outgoing; Thu, 10 Aug 2000 11:26:57 -0400 Received: from mzdy10.allegro.net (mzdy10.allegro.net [204.253.83.130]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id LAA20681 for ; Thu, 10 Aug 2000 11:26:56 -0400 Received: from inet.skadden.com (unverified) by mzdy10.allegro.net (Content Technologies SMTPRS 2.0.15) with SMTP id for ; Thu, 10 Aug 2000 11:26:25 -0400 Received: from Allegro_Inet-Message_Server by inet.skadden.com with Novell_GroupWise; Thu, 10 Aug 2000 11:22:54 -0400 Message-Id: X-Mailer: Novell GroupWise 5.5.2 Date: Thu, 10 Aug 2000 11:26:14 -0400 From: "Jose Esteves" To: Subject: [dvd-discuss] I wi MIME-Version: 1.0 Content-Type: text/plain; charset=US-ASCII Content-Disposition: inline Content-Transfer-Encoding: 8bit X-MIME-Autoconverted: from quoted-printable to 8bit by eon.law.harvard.edu id LAA20682 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I will be on vacation from Thursday, August 10, 2000 through Sunday, August 20, 2000. I likely will not have access to e-mail during this time. I will be checking voicemail periodically (212.735.2948). If you need immediate assistance during this time, please contact Stuart Levi at 212.735.2750. >>> "dvd-discuss@eon.law.harvard.edu" 08/10/00 11:22 >>> I will be on vacation from Thursday, August 10, 2000 through Sunday, August 20, 2000. I likely will not have access to e-mail during this time. I will be checking voicemail periodically (212.735.2948). If you need immediate assistance during this time, please contact Stuart Levi at 212.735.2750. >>> "dvd-discuss@eon.law.harvard.edu" 08/10/00 11:18 >>> I will be on vacation from Thursday, August 10, 2000 through Sunday, August 20, 2000. I likely will not have access to e-mail during this time. I will be checking voicemail periodically (212.735.2948). If you need immediate assistance during this time, please contact Stuart Levi at 212.735.2750. >>> "dvd-discuss@eon.law.harvard.edu" 08/09/00 20:50 >>> >>Plaintiffs' "barn" is not empty, and defendants certainly have not proved it >> so * although, CSS can continue to work effectively only if trafficking in >> DeCSS is enjoined by the courts as a clear violation of the >> anti-circumvention statute that Congress enacted. (Plaintiffs respectfully > submit that a better analogy is not to a barn from which the horses have all >> been let out, but to defendants' torpedo attack on plaintiffs' ship, which may >> be leaking, but not fatally so. Plaintiffs believe that the damage can be >> patched, and properly have asked the Court for its help in that reparative >> work.) >Hmmm, plaintiffs' barn is not empty, but their ship is sinking.... >Maybe it's their barn that is sinking, because their ship is >only leaking to the tune of... Actually, I like their new analogy. The ship is called the Titanic, and the torpedo is actually an iceberg. These lawyers are like the musicians who dutifully played on in hope that the passengers would be content to listen to their music ;-) Richard From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 10 12:08:13 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA22044 for dvd-discuss-outgoing; Thu, 10 Aug 2000 12:08:13 -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 MAA22041 for ; Thu, 10 Aug 2000 12:08:11 -0400 Received: from sites.inka.de (puric.inka.de [212.227.14.17]) by mail.inka.de with esmtp id 13Muru-0008Gi-00; Thu, 10 Aug 2000 18:07:42 +0200 Received: from localhost by sites.inka.de with local id 13Murv-0006Ac-00; Thu, 10 Aug 2000 18:07:43 +0200 Date: Thu, 10 Aug 2000 18:07:43 +0200 From: Sham Gardner To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] I wi Message-ID: <20000810180743.A23659@inka.de> References: Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0i In-Reply-To: ; from JESTEVES@skadden.com on Thu, Aug 10, 2000 at 11:26:14AM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, Aug 10, 2000 at 11:26:14AM -0400, Jose Esteves wrote: > I will be on vacation from Thursday, August 10, 2000 through Sunday, August 20, 2000. I likely will not have access to e-mail during this time. I will be checking voicemail periodically (212.735.2948). If you need immediate assistance during this time, please contact Stuart Levi at 212.735.2750. > > >>> "dvd-discuss@eon.law.harvard.edu" 08/10/00 11:22 >>> > > I will be on vacation from Thursday, August 10, 2000 through Sunday, > August 20, 2000. I likely will not have access to e-mail during this > time. I will be checking voicemail periodically (212.735.2948). If you > need immediate assistance during this time, please contact Stuart Levi at > 212.735.2750. This guy's autoresponder is in a perpetual loop, could someone unsubscribe him before he overwhelms the list? Sham -- http://sites.inka.de/risctaker/DeCSS/ "The first speech censored, the first thought forbidden, the first freedom denied, chains us all irrevocably." (Jean-Luc Picard) From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 10 12:29:14 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA23603 for dvd-discuss-outgoing; Thu, 10 Aug 2000 12:29:14 -0400 Received: from ghost.bibliotrack.com (root@adsl-151-202-34-10.bellatlantic.net [151.202.34.10]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id MAA23600 for ; Thu, 10 Aug 2000 12:29:13 -0400 Received: from seltzerw ([204.243.92.112]) by ghost.bibliotrack.com (8.9.3/8.9.3) with ESMTP id MAA18870 for ; Thu, 10 Aug 2000 12:18:43 -0400 Message-Id: <4.2.2.20000810122714.01b56280@pop.bellatlantic.net> X-Sender: wseltzer@pop.bellatlantic.net X-Mailer: QUALCOMM Windows Eudora Pro Version 4.2.2 Date: Thu, 10 Aug 2000 12:28:23 -0400 To: dvd-discuss@eon.law.harvard.edu From: Wendy Seltzer Subject: Re: [dvd-discuss] I wi In-Reply-To: <20000810180743.A23659@inka.de> 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 I added a few filters and notified the Skadden postmaster of the problem. Thanks. --Wendy At 06:07 PM 8/10/00 +0200, Sham Gardner wrote: >On Thu, Aug 10, 2000 at 11:26:14AM -0400, Jose Esteves wrote: > > I will be on vacation from Thursday, August 10, 2000 through Sunday, > August 20, 2000. I likely will not have access to e-mail during this > time. I will be checking voicemail periodically (212.735.2948). If you > need immediate assistance during this time, please contact Stuart Levi at > 212.735.2750. > > > > >>> "dvd-discuss@eon.law.harvard.edu" 08/10/00 11:22 >>> > > > > I will be on vacation from Thursday, August 10, 2000 through Sunday, > > August 20, 2000. I likely will not have access to e-mail during this > > time. I will be checking voicemail periodically (212.735.2948). If you > > need immediate assistance during this time, please contact Stuart Levi at > > 212.735.2750. > >This guy's autoresponder is in a perpetual loop, could someone unsubscribe >him before he overwhelms the list? > >Sham > >-- >http://sites.inka.de/risctaker/DeCSS/ >"The first speech censored, the first thought forbidden, the first freedom > denied, chains us all irrevocably." (Jean-Luc Picard) 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 Aug 10 12:43:07 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA24491 for dvd-discuss-outgoing; Thu, 10 Aug 2000 12:43:07 -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 MAA24488 for ; Thu, 10 Aug 2000 12:43:06 -0400 Received: from ppp.anonymizer.com (c04-039.015.popsite.net [64.24.75.39]) by cyberpass.net (8.8.8/8.7.3) with ESMTP id JAA23033; Thu, 10 Aug 2000 09:44:49 -0700 (PDT) Message-Id: <4.3.2.7.2.20000810093628.04fb4e80@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, 10 Aug 2000 09:42:27 -0700 To: dvd-discuss@eon.law.harvard.edu, dvd-discuss@eon.law.harvard.edu From: "James S. Tyre" Subject: Re: [dvd-discuss] I wi In-Reply-To: <20000810180743.A23659@inka.de> 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 06:07 PM 8/10/2000 +0200, Sham Gardner wrote: >On Thu, Aug 10, 2000 at 11:26:14AM -0400, Jose Esteves wrote: > > I will be on vacation from Thursday, August 10, 2000 through Sunday, > August 20, 2000. I likely will not have access to e-mail during this > time. I will be checking voicemail periodically (212.735.2948). If you > need immediate assistance during this time, please contact Stuart Levi at > 212.735.2750. > > > >This guy's autoresponder is in a perpetual loop, could someone unsubscribe >him before he overwhelms the list? Just shows to go you that you just can't trust those Yale Law grads, of which the U.S. political scene has seen way too many in recent cycles. ;-) He's an associate at the largest law firm in the U.S. They really ought to leave things such as the proper care and feeding of autoresponders to the trained professionals. -------------------------------------------------------------------- James S. Tyre mailto:jstyre@jstyre.com 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 Aug 10 12:57:14 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA25113 for dvd-discuss-outgoing; Thu, 10 Aug 2000 12:57:14 -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 MAA25110 for ; Thu, 10 Aug 2000 12:57:13 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id ; Thu, 10 Aug 2000 09:57:14 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1E09@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: [dvd-discuss] News Date: Thu, 10 Aug 2000 09:57:09 -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 http://www.wired.com/news_drop/palmpilot/stroy/0,1325,38145,00.html Panasonic just announced the release of a DVD recorder. Four hours per disc. Expected price, around $4000. -- -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 Aug 10 13:39:25 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA25753 for dvd-discuss-outgoing; Thu, 10 Aug 2000 13:39:25 -0400 Received: from thud.reric.net (sepp-host210.dsl.visi.com [209.98.241.210]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id NAA25750 for ; Thu, 10 Aug 2000 13:39:23 -0400 Received: (from eds@localhost) by thud.reric.net (8.9.3/8.8.7) id MAA22878 for dvd-discuss@eon.law.harvard.edu; Thu, 10 Aug 2000 12:38:58 -0500 Date: Thu, 10 Aug 2000 12:38:58 -0500 From: Eric Seppanen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] News Message-ID: <20000810123858.A22868@thud.reric.net> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <5A8391CA2D9ED311AFAA080009D982B10B1E09@mail2.onetouch.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1us In-Reply-To: <5A8391CA2D9ED311AFAA080009D982B10B1E09@mail2.onetouch.com>; from hartman@onetouch.com on Thu, Aug 10, 2000 at 09:57:09AM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, Aug 10, 2000 at 09:57:09AM -0700, Richard Hartman wrote: > > http://www.wired.com/news_drop/palmpilot/stroy/0,1325,38145,00.html > > Panasonic just announced the release of a DVD recorder. Four hours > per disc. Expected price, around $4000. Yesterdey I spotted a DVD camcorder on Hitachi's website: http://www.hitachi.com/dvdcam/ Supposed to go on sale August 25 in Japan. Uses 4.7 GB DVD-RAM discs. Estimated price is 248000 yen ( ~ $2280 if I'm calculating correctly). From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 10 17:17:50 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA03825 for dvd-discuss-outgoing; Thu, 10 Aug 2000 17:17:50 -0400 Received: from mercury.clearway.com (c100.clearway.com [199.103.231.100]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA03807 for ; Thu, 10 Aug 2000 17:17:49 -0400 Received: by c100.clearway.com with Internet Mail Service (5.5.2650.21) id ; Thu, 10 Aug 2000 17:21:02 -0400 Message-ID: From: Leland Ray To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] MPAA brief online Date: Thu, 10 Aug 2000 17:20:58 -0400 MIME-Version: 1.0 X-Mailer: Internet Mail Service (5.5.2650.21) Content-Type: text/plain; charset="ISO-8859-1" Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu There is a point at which argument condensation becomes argument suppression, and a point at which argument suppression violates due process. Obviously, the line is different in a civil trial, but in a criminal trial -- the Menendez trial comes to mind where the closing argument by the defense lasted eight hours...why not cut the defense off? Because of a few minor constitutional regiths, the defense is permitted a large amount of latitude. You might not be able to mention space limitations as such, but certainly failure to hear evidence or argument on particular lines such as anti-trust, or failure to recognize that a certain defense is valid do get brought up in appeals. -----Original Message----- From: James S. Tyre [mailto:jstyre@jstyre.com] Sent: Thursday, August 10, 2000 12:24 AM To: dvd-discuss@eon.law.harvard.edu Subject: RE: [dvd-discuss] MPAA brief online At 11:52 PM 8/9/2000 -0400, Leland Ray wrote: >After reading both the MPAA brief and the EFF brief, I sure hope >that in any appeal the serious space limitations imposed by >the court is mentioned. I think both sides could have used >additional space. -0- chance. Page limits have become ever more common, there is no due process right to write as much as one wants. From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 10 21:58:47 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA15658 for dvd-discuss-outgoing; Thu, 10 Aug 2000 21:58:47 -0400 Received: from mail.airbridge.net ([204.147.60.220]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id VAA15655 for ; Thu, 10 Aug 2000 21:58:46 -0400 Received: from agape.murphy.cx ([166.84.198.139]) by mail.airbridge.net (Netscape Messaging Server 3.6) with ESMTP id AAA1C8D for ; Thu, 10 Aug 2000 21:58:51 -0400 Received: (from murphy@localhost) by agape.murphy.cx (8.9.3/8.8.7) id VAA01352 for dvd-discuss@eon.law.harvard.edu; Thu, 10 Aug 2000 21:58:48 -0400 Date: Thu, 10 Aug 2000 21:58:47 -0400 From: Roy Murphy To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] MPAA brief online Message-ID: <20000810215847.D899@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, Aug 09, 2000 at 11:52:24PM -0400, thus spake Leland Ray: > After reading both the MPAA brief and the EFF brief, I sure hope > that in any appeal the serious space limitations imposed by > the court is mentioned. I think both sides could have used > additional space. The courtweb site shows an order from Kaplan lifting the page limits. (See this message for instructions to get into courtweb http://eon.law.harvard.edu/archive/dvd-discuss/msg06448.html) Date Case # Caption Title Judge Posted 08/07/00 00cv00277 Universal Studios v. Endorsement Lewis A. 08/07/00 Reimerdes, et al. Kaplan Description Request for leave to file extended page limit memorandum granted. -- 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 Fri Aug 11 02:10:30 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id CAA25849 for dvd-discuss-outgoing; Fri, 11 Aug 2000 02:10:30 -0400 Received: from web123.yahoomail.com (web123.yahoomail.com [205.180.60.191]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id CAA25846 for ; Fri, 11 Aug 2000 02:10:28 -0400 Received: (qmail 14255 invoked by uid 60001); 11 Aug 2000 06:09:59 -0000 Message-ID: <20000811060959.14254.qmail@web123.yahoomail.com> Received: from [128.122.253.144] by web123.yahoomail.com; Thu, 10 Aug 2000 23:09:59 PDT Date: Thu, 10 Aug 2000 23:09:59 -0700 (PDT) From: "Tuyet A. Ngoc Tran" Subject: Re: [dvd-discuss] News To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-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 was posted on E-media reporting from the DVD PRO convention in California last month. ----------------------------------------------------- The Millennium Group Proposes DVD Copy Protection ----------------------------------------------------- The Millennium Group, which is composed of Digimarc, Macrovision, and Philips, has announced that it will offer the motion picture industry a combined digital watermarking and play-control system for new DVD-Recorders and other digital video devices. The play-control mechanism makes use of Wobbletrack, a proprietary method of manufacturing DVD discs. The Wobbletrack feature, combined with a watermark, will allow playback devices to distinguish between authentic and illegally copied discs. The new Millennium proposal will also provide a copy-once watermark re-marking technology for applications in which one copy of a video program is allowed. (Digimarc Corporation: http://www.digimarc.com. Macrovision Corporation: http://www.macrovision.com. Philips Electronics North America http://www.philips.com --- Eric Seppanen wrote: > On Thu, Aug 10, 2000 at 09:57:09AM -0700, Richard > Hartman wrote: > http://www.wired.com/news_drop/palmpilot/stroy/0,1325,38145,00.html > > > > Panasonic just announced the release of a DVD > recorder. Four hours > > per disc. Expected price, around $4000. > > Yesterdey I spotted a DVD camcorder on Hitachi's > website: > > http://www.hitachi.com/dvdcam/ > > Supposed to go on sale August 25 in Japan. Uses 4.7 > GB DVD-RAM discs. > Estimated price is 248000 yen ( ~ $2280 if I'm > calculating correctly). > > > __________________________________________________ Do You Yahoo!? Kick off your party with Yahoo! Invites. http://invites.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 11 04:59:33 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id EAA26888 for dvd-discuss-outgoing; Fri, 11 Aug 2000 04:59:33 -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 EAA26885 for ; Fri, 11 Aug 2000 04:59:31 -0400 Received: from localhost (ssyreeni@localhost) by kruuna.Helsinki.FI (8.10.1/8.10.1) with ESMTP id e7B8x7J06154 for ; Fri, 11 Aug 2000 11:59:07 +0300 (EET DST) X-Authentication-Warning: kruuna.Helsinki.FI: ssyreeni owned process doing -bs Date: Fri, 11 Aug 2000 11:59:06 +0300 (EET DST) From: Sampo A Syreeni To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] MPAA brief online In-Reply-To: <20000810001911.B27936@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 Thu, 10 Aug 2000, Eric Eldred wrote: >Yes, as you point out, bandwidth is asymmetrical--downloads >are intentionally faster than uploads. Which kind of blows up their claims about the perils of file sharing, don't you think? Sampo Syreeni , aka decoy, student/math/Helsinki university From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 11 17:53:01 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA05213 for dvd-discuss-outgoing; Fri, 11 Aug 2000 17:53:01 -0400 Received: from tbird.iworld.com ([63.236.72.237]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA05210 for ; Fri, 11 Aug 2000 17:53:00 -0400 Received: (from nobody@localhost) by tbird.iworld.com (8.10.2/8.10.2) id e7BLqI219369; Fri, 11 Aug 2000 17:52:18 -0400 Date: Fri, 11 Aug 2000 17:52:18 -0400 Message-Id: <200008112152.e7BLqI219369@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] MPAA brief online Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Sampo A Syreeni wrote: >On Thu, 10 Aug 2000, Eric Eldred wrote: > >>Yes, as you point out, bandwidth is asymmetrical--downloads >>are intentionally faster than uploads. > >Which kind of blows up their claims about the perils of file sharing, don't >you think? The fact the net couldn't survive that kind of hit is what blow their claims Downloading from a file share is downloading. When it's initiated by the source box it's uploading. >Sampo Syreeni , aka decoy, student/math/Helsinki university > 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 Fri Aug 11 18:09:48 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA05422 for dvd-discuss-outgoing; Fri, 11 Aug 2000 18:09:48 -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 SAA05419 for ; Fri, 11 Aug 2000 18:09:47 -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 SAA01049 for ; Fri, 11 Aug 2000 18:09:26 -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 SAA00655 for ; Fri, 11 Aug 2000 18:06:01 -0400 (EDT) Mime-Version: 1.0 Message-Id: In-Reply-To: <20000809233525.21676.qmail@web514.mail.yahoo.com> References: <20000809233525.21676.qmail@web514.mail.yahoo.com> Date: Fri, 11 Aug 2000 17:49:27 -0400 To: dvd-discuss@eon.law.harvard.edu From: "Arnold G. Reinhold" Subject: Re: [dvd-discuss] Defense brief 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 >Here's a part of the 2600 brief that I thought was particularly good: > Has the defense brief been posted online? arnold From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 11 18:21:20 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA05570 for dvd-discuss-outgoing; Fri, 11 Aug 2000 18:21:20 -0400 Received: from ghost.bibliotrack.com (root@adsl-151-202-34-10.bellatlantic.net [151.202.34.10]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id SAA05567 for ; Fri, 11 Aug 2000 18:21:18 -0400 Received: from seltzerw ([204.243.92.112]) by ghost.bibliotrack.com (8.9.3/8.9.3) with ESMTP id SAA20163 for ; Fri, 11 Aug 2000 18:10:43 -0400 Message-Id: <4.2.2.20000811181452.00e5f980@pop.bellatlantic.net> X-Sender: wseltzer@pop.bellatlantic.net X-Mailer: QUALCOMM Windows Eudora Pro Version 4.2.2 Date: Fri, 11 Aug 2000 18:20:32 -0400 To: dvd-discuss@eon.law.harvard.edu From: Wendy Seltzer Subject: Re: [dvd-discuss] Defense brief In-Reply-To: References: <20000809233525.21676.qmail@web514.mail.yahoo.com> <20000809233525.21676.qmail@web514.mail.yahoo.com> Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii"; format=flowed Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu >Has the defense brief been posted online? Along with lots of news and transcripts linked at --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 Sat Aug 12 08:32:01 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id IAA10953 for dvd-discuss-outgoing; Sat, 12 Aug 2000 08:32:01 -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 IAA10950 for ; Sat, 12 Aug 2000 08:32:01 -0400 Received: from mediaone.net (h0060b03c5b8b.ne.mediaone.net [24.128.18.77]) by chmls06.mediaone.net (8.8.7/8.8.7) with ESMTP id IAA14955 for ; Sat, 12 Aug 2000 08:31:41 -0400 (EDT) Message-ID: <399543AC.6D310671@mediaone.net> Date: Sat, 12 Aug 2000 08:31:40 -0400 From: Sphere X-Mailer: Mozilla 4.73 [en] (WinNT; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] DeCSS vs. Commercial Speech Content-Type: text/plain; charset=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 the fact that Open Source software is at least Political speech, with a plausible argument for being Religious speech been discussed? It seems rather clear that Open Source software, and thereby DeCSS is not commercial speech, and is thus not subject to regulation by congress under its' power to regulate interstate commerce. -- Sphere. No permanence. No self. No perfection. From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 12 12:48:39 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA15017 for dvd-discuss-outgoing; Sat, 12 Aug 2000 12:48:39 -0400 Received: from bigbrother.net (root@w131.z208177180.chi-il.dsl.cnc.net [208.177.180.131]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id MAA15014 for ; Sat, 12 Aug 2000 12:48:38 -0400 Received: from localhost (sterno@localhost) by bigbrother.net (8.10.1/8.9.3) with ESMTP id e7CGmGQ05744 for ; Sat, 12 Aug 2000 11:48:16 -0500 Date: Sat, 12 Aug 2000 11:48:16 -0500 (CDT) From: Steve Stearns To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] DeCSS vs. Commercial Speech In-Reply-To: <399543AC.6D310671@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 > Has the fact that Open Source software is > at least Political speech, with a plausible > argument for being Religious speech been > discussed? What plausible argument is there for it being religious speech? The issue of the code being a form of expression has been brough up, yes. The interestingquestion at this point is to see whether the Judge thinks DeCSS is a protected form of expression. Is it more comparable to shouting fire in a crowded theater or expressing political dissent? Remember, just because it is a form of speech/expression doesn't necessarily mean it gets constitutional protection. ---Steve From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 12 13:23:50 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA15211 for dvd-discuss-outgoing; Sat, 12 Aug 2000 13:23:50 -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 NAA15208 for ; Sat, 12 Aug 2000 13:23:49 -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 <0FZ600CP9W8AOS@mta6.snfc21.pbi.net> for dvd-discuss@eon.law.harvard.edu; Sat, 12 Aug 2000 10:21:46 -0700 (PDT) Date: Sat, 12 Aug 2000 10:56:13 -0700 From: Paul Hsieh Subject: Re: [dvd-discuss] DeCSS vs. Commercial Speech In-reply-to: <399543AC.6D310671@mediaone.net> To: dvd-discuss@eon.law.harvard.edu Message-id: <0FZ600CPBW8AOS@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 > Has the fact that Open Source software is at least Political speech, with a > plausible argument for being Religious speech been discussed? > > It seems rather clear that Open Source software, and thereby DeCSS is not > commercial speech, and is thus not subject to regulation by congress under its' > power to regulate interstate commerce. Unfortunately, while LiViD is open source and the cs-auth code is open source, the DeCSS binary is not. I thought that this would be a sticky point that the plantiffs would bring up at some point, but their experts clearly did not show that level of skill. The Touretzky testimony probably made such distinctions irrelevant. So DeCSS and cs-auth have been released with a public domain licence, while LiViD is covered by an open source licence. -- Paul Hsieh qed@pobox.com From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 12 13:27:45 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA15500 for dvd-discuss-outgoing; Sat, 12 Aug 2000 13:27:45 -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 NAA15497 for ; Sat, 12 Aug 2000 13:27:44 -0400 Received: from mediaone.net (h0060b03c5b8b.ne.mediaone.net [24.128.18.77]) by chmls05.mediaone.net (8.8.7/8.8.7) with ESMTP id NAA12511 for ; Sat, 12 Aug 2000 13:27:26 -0400 (EDT) Message-ID: <399588FE.E57ED0E4@mediaone.net> Date: Sat, 12 Aug 2000 13:27:26 -0400 From: Sphere X-Mailer: Mozilla 4.73 [en] (WinNT; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] DeCSS vs. Commercial Speech 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 Steve Stearns wrote: > > > Has the fact that Open Source software is > > at least Political speech, with a plausible > > argument for being Religious speech been > > discussed? > > What plausible argument is there for it being religious speech? The issue > of the code being a form of expression has been brough up, yes. The > interestingquestion at this point is to see whether the Judge thinks DeCSS > is a protected form of expression. Is it more comparable to shouting fire > in a crowded theater or expressing political dissent? Remember, just > because it is a form of speech/expression doesn't necessarily mean it gets > constitutional protection. > > ---Steve I wouldn't argue that Open Source is an established religion. It is instead a religion in the process of being born. A religion most in need of the protection of the First Amendment. In forming an argument I would first start with a sociological definition of religion, and see how the practitioners of Open Source behave. This in order to lay the groundwork. Basically, I would show that people engaged in the Open Source movement acted like true believers. Second, I would bring up antidotal evidence starting in the early 70s about the "religious wars" of software, and perhaps things like the "AI koans." I would be sure to discuss the "editor wars," and specifically mention EMACS, given the place emacs has both in the editor wars and the beginning of the Open Source movement. (As someone who doesn't really like emacs I am personally aware of the religious overtones. I am treated like I an not a True Believer, and people frequently try to "convert" me.) Third, I would point out that it really isn't appropriate to attempt to lay out the beliefs of this nascient religion, but that the very existence of the Open Law project is an indication of this spreading religion. I might also point out that the 1st Amendment itself probably has some part to play in creating this new religion. The only thing I can think of which might resemble canon in the Open Source faith is the GPL. I'm not sure what could be done with this legally. -- Sphere. No permanence. No self. No perfection. From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 12 13:59:11 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA16298 for dvd-discuss-outgoing; Sat, 12 Aug 2000 13:59:11 -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 NAA16295 for ; Sat, 12 Aug 2000 13:59:10 -0400 Received: from mediaone.net (h0060b03c5b8b.ne.mediaone.net [24.128.18.77]) by chmls05.mediaone.net (8.8.7/8.8.7) with ESMTP id NAA01955 for ; Sat, 12 Aug 2000 13:58:51 -0400 (EDT) Message-ID: <3995905B.3B8F511F@mediaone.net> Date: Sat, 12 Aug 2000 13:58:51 -0400 From: Sphere X-Mailer: Mozilla 4.73 [en] (WinNT; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] DeCSS vs. Commercial Speech References: <0FZ600CPBW8AOS@mta6.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: > > > Has the fact that Open Source software is at least Political speech, with a > > plausible argument for being Religious speech been discussed? > > > > It seems rather clear that Open Source software, and thereby DeCSS is not > > commercial speech, and is thus not subject to regulation by congress under its' > > power to regulate interstate commerce. > > Unfortunately, while LiViD is open source and the cs-auth code is open source, > the DeCSS binary is not. I thought that this would be a sticky point that the > plantiffs would bring up at some point, but their experts clearly did not show that > level of skill. The Touretzky testimony probably made such distinctions irrelevant. > > So DeCSS and cs-auth have been released with a public domain licence, while > LiViD is covered by an open source licence. > > -- > Paul Hsieh > qed@pobox.com It doesn't matter at all that the binary isn't Open Source -- it is an expression of Open Source. Much like some Mantras, the meaning of the expression is totally irrelavent to its' significance. The binary signifies the True Meaning of its' Source. (Try thinking at least politically here. The law has to be dragged kicking and screaming down a line of thought.) -- Sphere. No permanence. No self. No perfection. From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 12 14:05:46 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA16420 for dvd-discuss-outgoing; Sat, 12 Aug 2000 14:05:46 -0400 Received: from smtp04.primenet.com (smtp04.primenet.com [206.165.6.134]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id OAA16417 for ; Sat, 12 Aug 2000 14:05:44 -0400 Received: (from daemon@localhost) by smtp04.primenet.com (8.9.3/8.9.3) id LAA29564 for ; Sat, 12 Aug 2000 11:03:45 -0700 (MST) Received: from sessions.phx.primenet.com(206.132.239.114), claiming to be "heorot.lumbercartel.com" via SMTP by smtp04.primenet.com, id smtpdAAANza4R5; Sat Aug 12 11:03:42 2000 Received: from frankenstein.lumbercartel.com (IDENT:dcs@frankenstein.lumbercartel.com [192.168.6.2]) by heorot.lumbercartel.com (8.9.3/8.8.7) with SMTP id LAA14260 for ; Sat, 12 Aug 2000 11:04:41 -0700 From: "D. C. Sessions" To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] One more time, with authority Date: Sat, 12 Aug 2000 09:21:50 -0700 X-Mailer: KMail [version 1.0.29] Content-Type: text/plain MIME-Version: 1.0 Message-Id: <00081211044000.11176@frankenstein.lumbercartel.com> Content-Transfer-Encoding: 8bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Whew! Having gone over the entire list archive, I saw this point approached several times but never tackled head-on. So now I get to display my ignorance. Proposed, arguendo, that the plaintiffs' contention is correct: that it is always a violation of the DMCA to play a lawfully-purchased DVD on a player, e.g. LiViD, lacking the blessing of the DVDCCA. This they derive from the statutory requirement for the "authority of the copyright holder," which is presumably absent in such case. Now this appears to be founded on the unexamined premise that there is an identity between "the blessing of the DVDCCA" and "the authority of the copyright holder." Let us, then examine the question in light of a hypothetical independent movie producer, not a member of the DVDCCA. Said producer (perhaps having failed to reach a distribution agreement with the major studios) has produced his own movie and wishes to distribute it. In pursuit of this aim, he has had a run of DVDs pressed in China using the same equipment that (e.g. Universal) uses for its own DVDs. Persuaded by the reasoning of the major studios, he also wishes to avail himself of the protections putatively afforded by CSS and so the DVD is encrypted in that fashion. Wishing to have his movie reviewed, he takes a promotional copy to the Geek Compound, where CmdrTaco watches it using LiViD. At this point, the plaintiffs hold that a crime has been commited. If so, either: 1) CmdrTaco lacks the authority of the copyright holder to access the work. This implies that: a) The producer is not the copyright holder. Devils advocates are welcome to pursue this point but on the face of it it is absurd. b) The producer is the copyright holder but does not have the legal means to convey authority to CmdrTaco to access the work. 2) CmdrTaco has the authority of the copyright holder to access the work, but not to do so using LiViD. 3) Would some Devil's Advocate care to add a third? The plaintiffs might pursue (1)(b) on grounds of, e.g., patent infringement, holding that the CCA holds exclusive rights to utilize CSS technology and thus that the indie DVD is illegal. If they do so I wish them well, since such a victory would give new meaning to the word, 'Pyrrhic'. For the purposes of Universal v Corley they have made no such claim, so we may assume that were CmdrTaco to use a Sony DVD player there would be no objection. Which leaves (2). Now if the copyright holder, standing right there, cannot give CmdrTaco authority to access the work using LiViD there must be some statutory, Constitutional, or public policy reason for it. 2a) The copyright holder has assigned the DVDCCA as his agent in determining the means that CmdrTaco (and everyone else) may use in accessing his work. This is certainly the case with Universal Studios. 1) It may be impossible to produce a CSS DVD without making such an assignment. For instance if the DVD CCA were the assignee of a patent on CSS and their patent license terms require that such authority be delegated to them. If so, we're back to (1)(b) above. 2) The DVD CCA may hold special rights in this matter, similar to those embodied in guild charters in previous years. I am not aware of anything similar to a Guild charter in American law. If such a thing exists I am not aware of the DVD CCA holding such a charter; certainly there was no evidence of one brought up at trial. 3) Devil's advocate: Am I missing a bet here? 2b) The copyright holder has granted CmdrTaco authority to access the work, but this is insufficient. 1) Devil's advocate? Am I missing a bet here? 2) As presented at trial, plaintiffs seem to be arguing that LiViD is in some way illegal in and of itself, independent of any one copyright holder's authority. 2c) Devil's advocate: Am I missing a bet here? So far, absent some Devilish inspiration, the plaintiffs seem to be placing their bets on (2)(b)(2) 2b2) If the permission of one copyright holder is insufficient to legitimize LiViD, it must be because either: a) The unanimous consent of all applicable copyright holders (??? all holding rights to works accessible by a device???) is necessary to legitimize a device intended to access any work. In which case, thwarted, our producer refuses all extant DVD players his permission thus single-handedly shutting down the DVD industry. I'd love to see this one argued. b) Some number of copyright holders, greater than one but less than unanimity, is required to legitimize the use of a device. The DVD CCA would probably like this one since almost any chosen 'voting' scheme would accomplish the same results as (2)(a)(2): a Royal charter granting them the equivalent of regulatory power. On the other hand, even given the legendary testicular hypertrophy of trial judges, I don't see *this* judge being quite this bold. c) Some Devil's Advocate comes up with a new mathematics. I'm not yielding on this one. Bottom line: the presumption that it is illegal for CmdrTaco to play a DVD given to him by the producer keeps coming up absurd. (Well, OK, we knew that. But knowing it and proving it are two different things.) Which leaves the possibility that it is perfectly legal for CmdrTaco to own a copy of LiViD and use it, but not for the developers of LiViD to posess or publish parts of it or of other code used as tools in its development. Another point I'd love to see argued, but it's about time for somebody to show me how I've screwed up this analysis. Or missed the fact that it's been done, or whatever. -- | Microsoft: "A reputation for releasing inferior software will make | | it more difficult for a software vendor to induce customers to pay | | for new products or new versions of existing products." | +----------- D. C. & M. V. Sessions ----------+ From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 12 14:35:25 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA16631 for dvd-discuss-outgoing; Sat, 12 Aug 2000 14:35:25 -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 OAA16628 for ; Sat, 12 Aug 2000 14:35:24 -0400 Received: by chiara.elte.hu (Postfix, from userid 17806) id 3381A7E1B5; Sat, 12 Aug 2000 20:35:04 +0200 (CEST) Date: Sat, 12 Aug 2000 20:44:06 +0200 (CEST) From: Ingo Molnar To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] DeCSS vs. Commercial Speech In-Reply-To: <399588FE.E57ED0E4@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 Sat, 12 Aug 2000, Sphere wrote: > I wouldn't argue that Open Source is an established religion. It is > instead a religion in the process of being born. A religion most in > need of the protection of the First Amendment. open source is rather the First Amendment itself, extended a tiny bit: 1) speak freely 2) what has been spoken freely once, shall be used in other free speeches freely as well there is nothing religious about this i'm afraid. This is the Scientific Method itself, practiced by hundreds of generations of (often atheist) scientists. Ingo From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 12 14:55:07 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA16746 for dvd-discuss-outgoing; Sat, 12 Aug 2000 14:55:07 -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 OAA16743 for ; Sat, 12 Aug 2000 14:55:07 -0400 Received: from mediaone.net (h0060b03c5b8b.ne.mediaone.net [24.128.18.77]) by chmls06.mediaone.net (8.8.7/8.8.7) with ESMTP id OAA24181 for ; Sat, 12 Aug 2000 14:54:48 -0400 (EDT) Message-ID: <39959D78.C7146957@mediaone.net> Date: Sat, 12 Aug 2000 14:54:48 -0400 From: Sphere X-Mailer: Mozilla 4.73 [en] (WinNT; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] DeCSS vs. Commercial Speech 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 Sat, 12 Aug 2000, Sphere wrote: > > > I wouldn't argue that Open Source is an established religion. It is > > instead a religion in the process of being born. A religion most in > > need of the protection of the First Amendment. > > open source is rather the First Amendment itself, extended a tiny bit: > > 1) speak freely > 2) what has been spoken freely once, shall be used in other free > speeches freely as well > > there is nothing religious about this i'm afraid. This is the Scientific > Method itself, practiced by hundreds of generations of (often atheist) > scientists. > > Ingo I certainly do not consider theism a defining characteristic of religion. I'm Buddhist. If you want to compare Open Source to Scientism that's fine with me, since I consider science a religion. This is beside the point. The question is, how do we protect this modality of thought from persecution by rich corporations? How do we protect what is at least a political, and possibly a religious, movement from being supressed? (Hundreds of generations? Nevermind....) -- Sphere. No permanence. No self. No perfection. From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 12 15:14:50 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA17035 for dvd-discuss-outgoing; Sat, 12 Aug 2000 15:14:50 -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 PAA17032 for ; Sat, 12 Aug 2000 15:14:50 -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 PAB21945 for ; Sat, 12 Aug 2000 15:14:25 -0400 (EDT) Message-Id: <4.1.20000812143913.01d88808@law.harvard.edu> X-Sender: wseltzer@pop.bellatlantic.net X-Mailer: QUALCOMM Windows Eudora Pro Version 4.1 Date: Sat, 12 Aug 2000 15:15:38 -0400 To: dvd-discuss@eon.law.harvard.edu From: Wendy Seltzer Subject: Re: [dvd-discuss] DeCSS vs. Commercial Speech In-Reply-To: <399543AC.6D310671@mediaone.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 At 08:31 AM 08/12/2000 -0400, Sphere wrote: > > >Has the fact that Open Source software is >at least Political speech, with a plausible >argument for being Religious speech been >discussed? In our amicus brief against the hyperlinking injunction, we described 2600's hyperlinks as protected by the First Amendment right of association. We also noted that wide dissemination of code/information was key to the distributed, non-hierarchical development of open source/free software -- to say that even a non-programmer's posting of the code should be considered within the "reverse engineering" exception. I don't know that either of those points had much impact. Even religion is subject to regulation by laws of general applicability that only 'incidentally' burden religion. In the end, I think the focus has to be on the illegitimacy/unconstitutionality of the expansion of copyright control plaintiffs are claiming more than on particularized exceptions. --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 Sat Aug 12 15:42:04 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA18918 for dvd-discuss-outgoing; Sat, 12 Aug 2000 15:42:04 -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 PAA18915 for ; Sat, 12 Aug 2000 15:42:03 -0400 Received: from mediaone.net (h0060b03c5b8b.ne.mediaone.net [24.128.18.77]) by chmls06.mediaone.net (8.8.7/8.8.7) with ESMTP id PAA05928 for ; Sat, 12 Aug 2000 15:41:44 -0400 (EDT) Message-ID: <3995A877.3BE214E@mediaone.net> Date: Sat, 12 Aug 2000 15:41:43 -0400 From: Sphere X-Mailer: Mozilla 4.73 [en] (WinNT; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] DeCSS vs. Commercial Speech References: <4.1.20000812143913.01d88808@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: > > At 08:31 AM 08/12/2000 -0400, Sphere wrote: > > > > > >Has the fact that Open Source software is > >at least Political speech, with a plausible > >argument for being Religious speech been > >discussed? > > In our amicus brief against the hyperlinking injunction, we described > 2600's hyperlinks as protected by the First Amendment right of association. > We also noted that wide dissemination of code/information was key to the > distributed, non-hierarchical development of open source/free software -- > to say that even a non-programmer's posting of the code should be > considered within the "reverse engineering" exception. I don't know that > either of those points had much impact. > > Even religion is subject to regulation by laws of general applicability > that only 'incidentally' burden religion. It's that 'incidentally' which has to be confronted then. Partly by arguing that the founding fathers did not approve of monopolies, and intended only the very narrowest of exceptions for copyright. Certainly, when copyright comes into confrontation with religious freedom, or even freedom of association, it is copyright which must, without condition, yield. To say otherwise is to make a sham of the notion of free speech. Commercial speech is a creature of the government to be governed by the restrictions upon the government. Public speech is a creature of the people; which the first amendment makes clear has a presumption of priority. > In the end, I think the focus has to be on the > illegitimacy/unconstitutionality of the expansion of copyright control > plaintiffs are claiming more than on particularized exceptions. That 'focus' should be but a minimum requirement. The reasons are freedom of assembly, and of religion. Expansion of copyright has already gone to the point of infringing upon these fundamentals even before the law in question. All that is being asked now is that this errosion be stopped. The claim should be that there has been an errosion of fundamental rights, and that further correction is required elsewhere, but that here all that is asked is that an end be made. > --Wendy > --- > Wendy Seltzer > wendy@seltzer.com > Fellow, Berkman Center for Internet & Society at Harvard Law School > http://cyber.law.harvard.edu/seltzer.html -- Sphere. No permanence. No self. No perfection. From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 12 15:46:45 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA19018 for dvd-discuss-outgoing; Sat, 12 Aug 2000 15:46:45 -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 PAA19015 for ; Sat, 12 Aug 2000 15:46:34 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id PAA29733 for dvd-discuss@eon.law.harvard.edu; Sat, 12 Aug 2000 15:52:46 -0400 Date: Sat, 12 Aug 2000 15:52:41 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] DeCSS vs. Commercial Speech Message-ID: <20000812155241.A29719@eldritchpress.org> References: <399543AC.6D310671@mediaone.net> <4.1.20000812143913.01d88808@law.harvard.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <4.1.20000812143913.01d88808@law.harvard.edu>; from wendy@seltzer.com on Sat, Aug 12, 2000 at 03:15:38PM -0400 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sat, Aug 12, 2000 at 03:15:38PM -0400, Wendy Seltzer wrote: >... > In the end, I think the focus has to be on the > illegitimacy/unconstitutionality of the expansion of copyright control > plaintiffs are claiming more than on particularized exceptions. Isn't one point simply that in presenting some arguments for First Amendment relationships--no matter which ones--then the judge is forced to use some First Amendment scrutiny in deciding if he can restrain speech by issuing a declaratory judgment? On the other hand, if plaintiffs are correct in claiming there is no First Amendment issue whatever, then the judge need not use any First Amendment scrutiny and can issue a declaratory judgment based on the other points of the law. For example, if Judge Kaplan decides that 2600 is a publisher and he cannot issue an injunction of prior restraint on a publisher, then Corley could continue his hyperlinks. But isn't there a problem with that? Even if 2600 links to DeCSS.exe are not "trafficking" in "circumvention" means, that might not apply to other instances MPAA can bring forth. And LiViD need not be allowed either. What I hope for is some case where Corley is not guilty, and LiViD is allowed--and, best of all, where DMCA is unconstitutional and therefore unenforceable. Even on appeal, and surely there will be one here. Then we can hope to produce more and better arguments. From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 12 16:01:32 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA19130 for dvd-discuss-outgoing; Sat, 12 Aug 2000 16:01:32 -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 QAA19122 for ; Sat, 12 Aug 2000 16:01:31 -0400 Received: from mediaone.net (h0060b03c5b8b.ne.mediaone.net [24.128.18.77]) by chmls06.mediaone.net (8.8.7/8.8.7) with ESMTP id QAA24622 for ; Sat, 12 Aug 2000 16:01:12 -0400 (EDT) Message-ID: <3995AD08.3C57506D@mediaone.net> Date: Sat, 12 Aug 2000 16:01:12 -0400 From: Sphere X-Mailer: Mozilla 4.73 [en] (WinNT; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] DeCSS vs. Commercial Speech References: <399543AC.6D310671@mediaone.net> <4.1.20000812143913.01d88808@law.harvard.edu> <20000812155241.A29719@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 Sat, Aug 12, 2000 at 03:15:38PM -0400, Wendy Seltzer wrote: > >... > > In the end, I think the focus has to be on the > > illegitimacy/unconstitutionality of the expansion of copyright control > > plaintiffs are claiming more than on particularized exceptions. > > Isn't one point simply that in presenting some arguments > for First Amendment relationships--no matter which ones--then > the judge is forced to use some First Amendment scrutiny in > deciding if he can restrain speech by issuing a declaratory > judgment? I would think that you'd want the arguments which the judge is least able to brush aside on technical grounds. These are, I think, in order: 1. religion, 2. assembly, 3. personal expression. Freedom of the press, despite explicit mention, runs a poor 4th. Open Source software has a good claim to freedom of assembly (political), and at least a plausible claim to religious. (I think it's a religion, but...) > On the other hand, if plaintiffs are correct in claiming > there is no First Amendment issue whatever, then the judge > need not use any First Amendment scrutiny and can issue a > declaratory judgment based on the other points of the law. > > For example, if Judge Kaplan decides that 2600 is a > publisher and he cannot issue an injunction of prior restraint > on a publisher, then Corley could continue his hyperlinks. > > But isn't there a problem with that? Even if 2600 links to > DeCSS.exe are not "trafficking" in "circumvention" means, > that might not apply to other instances MPAA can bring forth. > And LiViD need not be allowed either. > > What I hope for is some case where Corley is not guilty, > and LiViD is allowed--and, best of all, where DMCA is > unconstitutional and therefore unenforceable. Even on > appeal, and surely there will be one here. Then we can > hope to produce more and better arguments. -- Sphere. No permanence. No self. No perfection. From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 12 16:39:05 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA19614 for dvd-discuss-outgoing; Sat, 12 Aug 2000 16:39:05 -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 QAA19611 for ; Sat, 12 Aug 2000 16:39:04 -0400 Received: from mit.edu (h0050da62b39d.ne.mediaone.net [24.147.219.153]) by chmls06.mediaone.net (8.8.7/8.8.7) with ESMTP id QAA16853; Sat, 12 Aug 2000 16:38:46 -0400 (EDT) Message-ID: <3995B63A.942787A7@mit.edu> Date: Sat, 12 Aug 2000 16:40:26 -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: Re: [dvd-discuss] One more time, with authority References: <00081211044000.11176@frankenstein.lumbercartel.com> Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu You've captured the absurdity of the plaintiffs reading of the DMCA. It seems bizarre that some group of copyright holders' choice to use some protection technology constrains other copyright holder's use of the same technology, when no other rights to the technology are at issue (the MPAA's argument applies regardless of the status of the CSS patents or any other intellectual property right related to CSS). I believe the plaintiffs would take the position that your example is irrelevant. No independent movie producer has released any such movie on DVD without signing a CSS license agreement, so the possible non-circumvention use of DeCSS and/or Livid does not exist. That this is circular reasoning (you get to ban tools because they haven't developed far enough to enable their legitimate uses) does not seem to bother them. At some level the circular reasoning rescues them from the most absurd consequences of their reading (rot13 can't be banned because it is already in wide use) while giving them amazing power over any future technology they're interested in. - Ravi Nanavati From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 12 17:33:16 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA21490 for dvd-discuss-outgoing; Sat, 12 Aug 2000 17:33:16 -0400 Received: from smtp04.primenet.com (smtp04.primenet.com [206.165.6.134]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA21487 for ; Sat, 12 Aug 2000 17:33:15 -0400 Received: (from daemon@localhost) by smtp04.primenet.com (8.9.3/8.9.3) id OAA05120 for ; Sat, 12 Aug 2000 14:31:18 -0700 (MST) Received: from sessions.phx.primenet.com(206.132.239.114), claiming to be "heorot.lumbercartel.com" via SMTP by smtp04.primenet.com, id smtpdAAAtHa48j; Sat Aug 12 14:31:14 2000 Received: from frankenstein.lumbercartel.com (IDENT:dcs@frankenstein.lumbercartel.com [192.168.6.2]) by heorot.lumbercartel.com (8.9.3/8.8.7) with SMTP id OAA15010 for ; Sat, 12 Aug 2000 14:32:17 -0700 From: "D. C. Sessions" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] One more time, with authority Date: Sat, 12 Aug 2000 14:28:30 -0700 X-Mailer: KMail [version 1.0.29] Content-Type: text/plain References: <00081211044000.11176@frankenstein.lumbercartel.com> <3995B63A.942787A7@mit.edu> In-Reply-To: <3995B63A.942787A7@mit.edu> MIME-Version: 1.0 Message-Id: <00081214321600.11361@frankenstein.lumbercartel.com> Content-Transfer-Encoding: 8bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sat, 12 Aug 2000, Ravi Nanavati wrote: > You've captured the absurdity of the plaintiffs reading of the > DMCA. It seems bizarre that some group of copyright holders' > choice to use some protection technology constrains other > copyright holder's use of the same technology, when no > other rights to the technology are at issue (the MPAA's > argument applies regardless of the status of the CSS patents > or any other intellectual property right related to CSS). > > I believe the plaintiffs would take the position that your > example is irrelevant. No independent movie producer has > released any such movie on DVD without signing a CSS license > agreement, so the possible non-circumvention use of DeCSS > and/or Livid does not exist. That this is circular reasoning > (you get to ban tools because they haven't developed far > enough to enable their legitimate uses) does not seem > to bother them. At some level the circular reasoning rescues > them from the most absurd consequences of their reading > (rot13 can't be banned because it is already in wide use) > while giving them amazing power over any future technology > they're interested in. This is where IANAL comes in, but I thought that "It hasn't happened yet" didn't wash when dealing with prior restraint for exactly that reason. In fact, it seems to me that the plaintiffs are the absolute last people to complain in this case of hypotheticals, seeing as how their entire case is predicated on speculation about things that haven't happened yet. -- | Microsoft: "A reputation for releasing inferior software will make | | it more difficult for a software vendor to induce customers to pay | | for new products or new versions of existing products." | +----------- D. C. & M. V. Sessions ----------+ From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 12 18:22:33 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA22453 for dvd-discuss-outgoing; Sat, 12 Aug 2000 18:22:33 -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 SAA22450 for ; Sat, 12 Aug 2000 18:22:31 -0400 Received: from mediaone.net (h0060b03c5b8b.ne.mediaone.net [24.128.18.77]) by chmls06.mediaone.net (8.8.7/8.8.7) with ESMTP id SAA14745; Sat, 12 Aug 2000 18:22:12 -0400 (EDT) Message-ID: <3995CE14.8318C656@mediaone.net> Date: Sat, 12 Aug 2000 18:22:12 -0400 From: Sphere X-Mailer: Mozilla 4.73 [en] (WinNT; U) X-Accept-Language: en MIME-Version: 1.0 To: Steve Stearns , dvd-discuss Subject: Re: [dvd-discuss] DeCSS vs. Commercial Speech 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 don't accept personal email. Let's start out by understanding that religion isn't what outsiders tell you it is. I might read your message when it comes back via the list. Steve Stearns wrote: > > I figured I'd just respond to you as I'm about to get a little off the > list topic... > > > I wouldn't argue that Open Source is an established > > religion. It is instead a religion in the process > > of being born. A religion most in need of the > > protection of the First Amendment. > > Software is a form of expression, and therefor I do believe that there are > first amendment issues involved with it whether it is source code, a > binary, or something in between. But religion? But we'll get to that in > a moment. > > > In forming an argument I would first start with > > a sociological definition of religion, and see > > how the practitioners of Open Source behave. This > > in order to lay the groundwork. Basically, I > > would show that people engaged in the Open Source > > movement acted like true believers. > > Religion is a social institution built on the spiritual cravings of the > people in society. Human being have an inherent desire to find things > that transend the ordinary world around them. It is comforting to find > order where there is apparent chaos and know that when you "die" your life > continues on. > > Open Source is a term to describe software whose source code is open and > available for peopel to see and criticize. That is all. Now, there is a > larger political/philosophical movement that goes behind all of this which > speaks to having information in general being free and open. The theory > being that software, speech, music, etc, are all expressions of ideas and > for the most part these ideas are synthesized from experiences we have > withing the context of society. But this has nothing to do with > spirituality, transcendence, etc, so it really doesn't qualify as a > religion. > > Oh, as a side note the "Free Software" movement is more along the lines of > what you are discussing here. GNU and the whole free software movement > started by Stahlman were a decidely political and philosophical > decision. The recent move to "Open Source" was a way of toning down the > rhetoric of the movement to be more palatable toward corporate ears. It's > basically the difference between saying something is good for you because > it helps the bottom line profits, and saying this is good for you because > it is a good moral thing to do. > > > Second, I would bring up antidotal evidence starting > > in the early 70s about the "religious wars" of software, > > and perhaps things like the "AI koans." I would be > > sure to discuss the "editor wars," and specifically > > mention EMACS, given the place emacs has both in the > > editor wars and the beginning of the Open Source movement. > > (As someone who doesn't really like emacs I am personally > > aware of the religious overtones. I am treated like > > I an not a True Believer, and people frequently try to > > "convert" me.) > > Fanaticism does not imply religion. I can be fanatical about an editor, > or a religion, or a sports team, but the act of being a fanatic is a > seperate issue. I know people who are religious who don't express the > sort of obsessive fanaticism that some people who aren't religious > express. > > > Third, I would point out that it really isn't appropriate > > to attempt to lay out the beliefs of this nascient religion, > > but that the very existence of the Open Law project is > > an indication of this spreading religion. I might also > > point out that the 1st Amendment itself probably has > > some part to play in creating this new religion. > > There is a difference between a philosophy and a religion. That isn't to > say that one is more or less important than the other. But there is an > important difference in the terminology and the meaning there, especially > in the context of law. I'll first person to suggest that all of the > terms we use are relative and have different meanings depending on the > society we are in, etc. But in the context of the legal system and > mainstream understanding, the open source movement is political and > philosophical, not theocratical. > > ---Steve -- Sphere. No permanence. No self. No perfection. From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 12 18:48:30 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA22999 for dvd-discuss-outgoing; Sat, 12 Aug 2000 18:48:30 -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 SAA22996 for ; Sat, 12 Aug 2000 18:48:29 -0400 Received: from localhost (localhost [[UNIX: localhost]]) by rjmconsulting.com (8.9.3/8.9.3) id QAA11718 for dvd-discuss@eon.law.harvard.edu; Sat, 12 Aug 2000 16:00:05 -0700 From: Russell (James) Miller To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] DeCSS vs. Commercial Speech Date: Sat, 12 Aug 2000 15:52:24 -0700 X-Mailer: KMail [version 1.0.29.2] Content-Type: text/plain References: <3995CE14.8318C656@mediaone.net> In-Reply-To: <3995CE14.8318C656@mediaone.net> MIME-Version: 1.0 Message-Id: <00081216000402.31585@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 If you will not allow things like these to be taken off-list, then allow them to die. The rest of us are not interested in a discussion of philosophy versus religion, etc (I've already had my fair share of religion and am sick of it). And if we were, this is absolutely NOT the place for it. So if you "do not accept personal email", and want to force the rest of us to be in on a conversation that Steve has already tried to take off-list, I would daresay (and this is something that I say very very rarely) that you may not belong here, as the tendency to pull discussions off-topic and refuse to take them off list may too tempting for you to resist. We are here to discuss the legal actions brought by the MPAA against 2600 using the DMCA, and certain other consequential details, trials, and RFCs, NOT have this kind of discussion. Also, it is very rude to post private mails to a list without the consent of the author of the mails. I had someone do that to me several years ago on another list, in fact, someone quite similar to you who would not allow a discussion to be taken offlist or allow it to die. I hope that Wendy is a bit less tolerant of that than the other list maintainer was. This will be my last email to you as I am filtering you out. --james (Russell) On Sat, 12 Aug 2000, you wrote: > I don't accept personal email. Let's start > out by understanding that religion isn't what > outsiders tell you it is. I might read your > message when it comes back via the list. > > > Steve Stearns wrote: > > > > I figured I'd just respond to you as I'm about to get a little off the > > list topic... > > > > > I wouldn't argue that Open Source is an established > > > religion. It is instead a religion in the process > > > of being born. A religion most in need of the > > > protection of the First Amendment. > > > > Software is a form of expression, and therefor I do believe that there are > > first amendment issues involved with it whether it is source code, a > > binary, or something in between. But religion? But we'll get to that in > > a moment. > > > > > In forming an argument I would first start with > > > a sociological definition of religion, and see > > > how the practitioners of Open Source behave. This > > > in order to lay the groundwork. Basically, I > > > would show that people engaged in the Open Source > > > movement acted like true believers. > > > > Religion is a social institution built on the spiritual cravings of the > > people in society. Human being have an inherent desire to find things > > that transend the ordinary world around them. It is comforting to find > > order where there is apparent chaos and know that when you "die" your life > > continues on. > > > > Open Source is a term to describe software whose source code is open and > > available for peopel to see and criticize. That is all. Now, there is a > > larger political/philosophical movement that goes behind all of this which > > speaks to having information in general being free and open. The theory > > being that software, speech, music, etc, are all expressions of ideas and > > for the most part these ideas are synthesized from experiences we have > > withing the context of society. But this has nothing to do with > > spirituality, transcendence, etc, so it really doesn't qualify as a > > religion. > > > > Oh, as a side note the "Free Software" movement is more along the lines of > > what you are discussing here. GNU and the whole free software movement > > started by Stahlman were a decidely political and philosophical > > decision. The recent move to "Open Source" was a way of toning down the > > rhetoric of the movement to be more palatable toward corporate ears. It's > > basically the difference between saying something is good for you because > > it helps the bottom line profits, and saying this is good for you because > > it is a good moral thing to do. > > > > > Second, I would bring up antidotal evidence starting > > > in the early 70s about the "religious wars" of software, > > > and perhaps things like the "AI koans." I would be > > > sure to discuss the "editor wars," and specifically > > > mention EMACS, given the place emacs has both in the > > > editor wars and the beginning of the Open Source movement. > > > (As someone who doesn't really like emacs I am personally > > > aware of the religious overtones. I am treated like > > > I an not a True Believer, and people frequently try to > > > "convert" me.) > > > > Fanaticism does not imply religion. I can be fanatical about an editor, > > or a religion, or a sports team, but the act of being a fanatic is a > > seperate issue. I know people who are religious who don't express the > > sort of obsessive fanaticism that some people who aren't religious > > express. > > > > > Third, I would point out that it really isn't appropriate > > > to attempt to lay out the beliefs of this nascient religion, > > > but that the very existence of the Open Law project is > > > an indication of this spreading religion. I might also > > > point out that the 1st Amendment itself probably has > > > some part to play in creating this new religion. > > > > There is a difference between a philosophy and a religion. That isn't to > > say that one is more or less important than the other. But there is an > > important difference in the terminology and the meaning there, especially > > in the context of law. I'll first person to suggest that all of the > > terms we use are relative and have different meanings depending on the > > society we are in, etc. But in the context of the legal system and > > mainstream understanding, the open source movement is political and > > philosophical, not theocratical. > > > > ---Steve > > -- > Sphere. > > No permanence. No self. No perfection. -- Russell (James) Miller - rmiller@duskglow.com - russell@know-where.com ----------------------------------------------------------------------- The following sites are my own and do not necessarily represent the views of any of my clients. http://www.duskglow.com http://www.singlegeek.com http://www.whathaveyoudone.org From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 12 19:15:28 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA23440 for dvd-discuss-outgoing; Sat, 12 Aug 2000 19:15:28 -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 TAA23437 for ; Sat, 12 Aug 2000 19:15:27 -0400 Received: from mediaone.net (h0060b03c5b8b.ne.mediaone.net [24.128.18.77]) by chmls05.mediaone.net (8.8.7/8.8.7) with ESMTP id TAA13242 for ; Sat, 12 Aug 2000 19:15:10 -0400 (EDT) Message-ID: <3995DA7E.1E158BFA@mediaone.net> Date: Sat, 12 Aug 2000 19:15:10 -0400 From: Sphere X-Mailer: Mozilla 4.73 [en] (WinNT; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] DeCSS vs. Commercial Speech References: <3995CE14.8318C656@mediaone.net> <00081216000402.31585@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 "Russell (James) Miller" wrote: > > If you will not allow things like these to be taken off-list, then allow them [and further noise] Then stick to the topic. I haven't even read whatever it is -- or most of what you wrote. I started to read it after forwarding it, but I must admit I found it uninteresting. Aside from the fact that I wanted to make sure I didn't receive any more such emails, I did want to make the point that what people want others' viewpoints to be -- such as upon the etiquette of lists -- didn't make it so. Open Source is _at_least_ political speech. -- Sphere. No permanence. No self. No perfection. From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 12 23:05:35 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA25016 for dvd-discuss-outgoing; Sat, 12 Aug 2000 23:05:35 -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 XAA25013 for ; Sat, 12 Aug 2000 23:05:34 -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 UAA13190 for ; Sat, 12 Aug 2000 20:05:03 -0700 Received: (from daw@localhost) by blowfish.isaac.cs.berkeley.edu (8.8.7/8.8.7) id TAA03200; Sat, 12 Aug 2000 19:13:56 -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] One more time, with authority Date: 12 Aug 2000 19:12:47 -0700 Organization: A poorly-installed InterNetNews site Lines: 28 Distribution: isaac Message-ID: <8n506v$33r$1@blowfish.isaac.cs.berkeley.edu> References: <00081211044000.11176@frankenstein.lumbercartel.com> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Yes, and I thought this point had been brought up before on the list? One important observation of your analysis is that DeCSS can be used for non-circumventing uses. Fine, I don't think you'll find too much debate on that point on this list. But note that this lawsuit is about trafficking in circumvention devices, not performing an act of circumvention, and note that the mere existence of a non-circumventing use does not prevent a device from being classified as a circumvention device. Does this change your analysis? (For example, the plaintiffs might observe that (1) independent producers are extremely rare, and (2) DeCSS was primarily intended to view normal movies rather than specifically to view independently-produced movies. They might conclude, on the basis of these facts, that the primary purpose of DeCSS is thus for circumvention and therefore DeCSS should be classed as a prohibited device. It's not an entirely absurd line of argument...) Anyway, I agree that the meaning of the word "authority" in 1201(a) seems particular unclear, and the MPAA's brief didn't shed any light on the issue. And I agree with most of your reservations about the "authority" issue. I suspect your conclusions are probably accurate. But I'm not convinced that your argument is sufficient to prove it. However, it is in the end a question of law. Let's see whether Kaplan offers any insightful analysis on the "authority" question! From dvd-discuss-owner@eon.law.harvard.edu Sun Aug 13 08:03:56 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id IAA30316 for dvd-discuss-outgoing; Sun, 13 Aug 2000 08:03:56 -0400 Received: from mc-qout4.whowhere.com (mc-qout4.whowhere.com [209.185.123.18]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id IAA30313 for ; Sun, 13 Aug 2000 08:03:55 -0400 Received: from Unknown/Local ([?.?.?.?]) by my-deja.com; Sun Aug 13 05:02:53 2000 To: dvd-discuss@eon.law.harvard.edu Date: Sun, 13 Aug 2000 05:02:54 -0700 From: "anatoli tubman" Message-ID: Mime-Version: 1.0 Content-Language: en X-Sent-Mail: off X-Mailer: MailCity Service Subject: [dvd-discuss] Authorized devices? X-Sender-Ip: 12.11.149.5 Organization: My Deja Email (http://www.my-deja.com:80) Content-Type: text/plain; charset=us-ascii Content-Language: en Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I don't know whether this was brought before. Anyway, here goes. The MPAA's theory is that viewing devices are authorized. What happens with devices modified by an end-user? Are they still authorized? Let's concern ourselves with set-top DVD players. 1. I buy a DVD player in Europe, bring it to the USA, modify to work with 110V wall electricity. Is this still an authorized device? 2. I buy a DVD player, it doesn't work as it should. I find the ROM, debug it, fix some errors, burn a new ROM. Is this autorized? 3. Ditto, only this time I disable non-skippable ads. Same question. 4. Ditto, I disable region codes. 5. Ditto, I replace the original ROM with my own, including CSS descrambler and all. 6. Suppose that one innocent pin of one innocent chip inside the player carries the decoded MPEG signal. I install a new RSA jack or whatever that carries the signal to the outside. It is clear that MPAA would not like some mods while it doesn't care about others (voltage conversion). Where the line is drawn? How I, the customer, can possibly know what mods I can and cannot make? It seems self-evident that the concept of authorized devices is flawed. Unless, of course, MPAA speculates that the only authorized devices are those with the manufacturer's seal intact. Which means you cannot repair your player in Joe's Electronic Repairs, you must go to the manufacturer's repair facility which can charge you any price it wants or refuse to repair altogether if your warranty is over. It smells fishy. -- anatoli P.S. Pardon my English :) --== Sent via Deja.com http://www.deja.com/ ==-- Before you buy. From dvd-discuss-owner@eon.law.harvard.edu Sun Aug 13 09:20:54 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA30527 for dvd-discuss-outgoing; Sun, 13 Aug 2000 09:20:54 -0400 Received: from smtp03.primenet.com (smtp03.primenet.com [206.165.6.133]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id JAA30524 for ; Sun, 13 Aug 2000 09:20:52 -0400 Received: (from daemon@localhost) by smtp03.primenet.com (8.9.3/8.9.3) id GAA04204 for ; Sun, 13 Aug 2000 06:19:39 -0700 (MST) Received: from sessions.phx.primenet.com(206.132.239.114), claiming to be "heorot.lumbercartel.com" via SMTP by smtp03.primenet.com, id smtpdAAAa6aqji; Sun Aug 13 06:19:30 2000 Received: from frankenstein.lumbercartel.com (IDENT:dcs@frankenstein.lumbercartel.com [192.168.6.2]) by heorot.lumbercartel.com (8.9.3/8.8.7) with SMTP id GAA09054 for ; Sun, 13 Aug 2000 06:19:54 -0700 From: "D. C. Sessions" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] One more time, with authority Date: Sun, 13 Aug 2000 05:59:39 -0700 X-Mailer: KMail [version 1.0.29] Content-Type: text/plain References: <00081211044000.11176@frankenstein.lumbercartel.com> <8n506v$33r$1@blowfish.isaac.cs.berkeley.edu> In-Reply-To: <8n506v$33r$1@blowfish.isaac.cs.berkeley.edu> MIME-Version: 1.0 Message-Id: <00081306195300.06842@frankenstein.lumbercartel.com> Content-Transfer-Encoding: 8bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sat, 12 Aug 2000, David A. Wagner wrote: > One important observation of your analysis is that DeCSS can be used for > non-circumventing uses. Fine, I don't think you'll find too much debate > on that point on this list. Not according to the DVDCCA. I'm looking at doing a _reductio_ad_absurdem_ on their position. And according to them, every use of a Philips player would be infringment if Philips didn't have the CCA's license. Their whole position is founded, AFAICT, on the hidden assumption that there is a 1:1 correspondence between the CCA and the "copyright holder" of statute. > But note that this lawsuit is about trafficking in circumvention devices, > not performing an act of circumvention, and note that the mere existence > of a non-circumventing use does not prevent a device from being classified > as a circumvention device. Does this change your analysis? According to their apparent authority model, there *are* no non-circumventing uses, because LiViD doesn't have a CCA license and therefore the user of a LiViD player doesn't have "the authority of the copyright holder." > (For example, the plaintiffs might observe that (1) independent producers > are extremely rare, My case (2)(b)(2)(b), quote: 2b2) If the permission of one copyright holder is insufficient to legitimize LiViD, it must be because either: [...] b) Some number of copyright holders, greater than one but less than unanimity, is required to legitimize the use of a device. The DVD CCA would probably like this one since almost any chosen 'voting' scheme would accomplish the same results as (2)(a)(2): a Royal charter granting them the equivalent of regulatory power. On the other hand, even given the legendary testicular hypertrophy of trial judges, I don't see *this* judge being quite this bold. In other words, if 'rare' is good enough, then their monopoly market power has been translated into the equivalent of regulatory power backed by the might and majesty of the State. > and (2) DeCSS was primarily intended to view normal > movies rather than specifically to view independently-produced movies. Oh, they would absolutely *love* to have the Law establish a system of first- and second-class works. As noted, I would dearly love to hear the Supreme Court comment on _that_ concept. > They might conclude, on the basis of these facts, that the primary purpose > of DeCSS is thus for circumvention and therefore DeCSS should be classed > as a prohibited device. It's not an entirely absurd line of argument...) And I can think of few lines of argument I would rather see them take, since this amounts to a judicial endorsement of the idea that filmmaking is a game which only the Big Boys can legally play. > Anyway, I agree that the meaning of the word "authority" in 1201(a) > seems particular unclear, and the MPAA's brief didn't shed any light on > the issue. What I'm looking for is whether there is a way around my analysis, because if it's correct we have a lethal response to any line that they take. Don't focus on the *player*, focus on the *producer*. The Courts in the USA are on very new ground when you deal with the means of accessing copyrighted material, since until recently there has never been any particular problem with access. OTOH there is a tremendous amount of support for the *producers* of speech. What we need to bring up is that "die Gedanken sind frei" is meaningless; that the freedom to produce a work is might as well not exist if there is no way for the speaker to reach a willing audience. (You can make and show the film, but it's illegal to enter the theatre.) On those terms the Law is extremely well settled, and the DVDCCA is totally out on a limb. Let's start sawing. > And I agree with most of your reservations about the "authority" issue. > I suspect your conclusions are probably accurate. But I'm not convinced > that your argument is sufficient to prove it. So please break it. Good start, but you walked right into (2)(b)(2)(b) -- not that I wouldn't love to see the plaintiffs do the same. -- | Microsoft: "A reputation for releasing inferior software will make | | it more difficult for a software vendor to induce customers to pay | | for new products or new versions of existing products." | +----------- D. C. & M. V. Sessions ----------+ From dvd-discuss-owner@eon.law.harvard.edu Sun Aug 13 14:57:29 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA02418 for dvd-discuss-outgoing; Sun, 13 Aug 2000 14:57:29 -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 OAA02415 for ; Sun, 13 Aug 2000 14:57:26 -0400 Received: from easybase.com (unverified [192.115.162.238]) by server.easybase.com (EMWAC SMTPRS 0.83) with SMTP id ; Sun, 13 Aug 2000 21:56:10 +0300 Message-ID: <39971B41.FFD0A25A@easybase.com> Date: Sun, 13 Aug 2000 22:03:45 +0000 From: Moshe Vainer X-Mailer: Mozilla 4.72 [en] (X11; U; Linux 2.2.17-0.16mdk i686) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] DeCSS for Linux player References: Content-Type: text/plain; charset=iso-8859-15 Content-Transfer-Encoding: 8bit X-MIME-Autoconverted: from base64 to 8bit by eon.law.harvard.edu id OAA02416 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Look at this link: http://videolan.via.ecp.fr/developers.html This is a linux DVD player alternative (to LiVid) project's to do list. Especially pay attention to this: task 0x1f: DeCSS and DVD ioctls Difficulty: Hard Urgency: Normal Status: Todo The vlc needs the DVD ioctls support as well as the integration of DeCSS to play DVDs properly. The person doing this should probably not live in a country where DeCSS has been ruled illegal. This can be used to show once again that althou DeCSS is a windows program... etc, also note that this site is in france, and the absurdity of the situation that has resulted from this lawsuite ("The person doing this should probably not live in a country where DeCSS has been ruled illegal.") Rgrds, Moshe Vainer moshev@easybase.com From dvd-discuss-owner@eon.law.harvard.edu Sun Aug 13 15:47:31 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA04702 for dvd-discuss-outgoing; Sun, 13 Aug 2000 15:47:31 -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 PAA04699 for ; Sun, 13 Aug 2000 15:47:29 -0400 Received: by aero.org id <17115-3>; Sun, 13 Aug 2000 12:47:06 -0700 Received: from mhultra.aero.org(130.221.88.102) via SMTP by aero.org, id smtpdAAAa03356; Sun Aug 13 12:46:53 2000 Received: from lahub01-a3.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Sun, 13 Aug 2000 12:46:15 -0700 Subject: Re: [dvd-discuss] Authorized devices? 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 08/13/2000 12:46:14 PM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Date: Sun, 13 Aug 2000 12:47:02 -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I think that shows how slippery their slope is. #1 would be OK since I can use a wall adapter but as for changing a transformer and regulator....you shouldn't do that...you might hurt yourself. Let a "professional" do that for you at several hundred dollars an hour...or better yet just buy a new player. As for #2-#6....That is FORBIDDEN! If you tell anybody HOW to do it that's a criminal offense - trafficing in circumversion...The MPAA etc desparately do NOT want this to be the first amendment case it is. Corley has a website, he publishes a magazine (60,000 subscribers is pretty good a lot of newspapers don't even have that) but since he doesn't work for Time Warner he's not a journalist so he's not reporting anything just circumverting ... "anatoli tubman" @eon.law.harvard.edu on 08/13/2000 05:05:25 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] Authorized devices? I don't know whether this was brought before. Anyway, here goes. The MPAA's theory is that viewing devices are authorized. What happens with devices modified by an end-user? Are they still authorized? Let's concern ourselves with set-top DVD players. 1. I buy a DVD player in Europe, bring it to the USA, modify to work with 110V wall electricity. Is this still an authorized device? 2. I buy a DVD player, it doesn't work as it should. I find the ROM, debug it, fix some errors, burn a new ROM. Is this autorized? 3. Ditto, only this time I disable non-skippable ads. Same question. 4. Ditto, I disable region codes. 5. Ditto, I replace the original ROM with my own, including CSS descrambler and all. 6. Suppose that one innocent pin of one innocent chip inside the player carries the decoded MPEG signal. I install a new RSA jack or whatever that carries the signal to the outside. It is clear that MPAA would not like some mods while it doesn't care about others (voltage conversion). Where the line is drawn? How I, the customer, can possibly know what mods I can and cannot make? It seems self-evident that the concept of authorized devices is flawed. Unless, of course, MPAA speculates that the only authorized devices are those with the manufacturer's seal intact. Which means you cannot repair your player in Joe's Electronic Repairs, you must go to the manufacturer's repair facility which can charge you any price it wants or refuse to repair altogether if your warranty is over. It smells fishy. -- anatoli P.S. Pardon my English :) --== Sent via Deja.com http://www.deja.com/ ==-- Before you buy. From dvd-discuss-owner@eon.law.harvard.edu Sun Aug 13 16:39:43 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA06373 for dvd-discuss-outgoing; Sun, 13 Aug 2000 16:39:43 -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 QAA06370 for ; Sun, 13 Aug 2000 16:39:42 -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 NAA15966 for ; Sun, 13 Aug 2000 13:39:13 -0700 Received: (from daw@localhost) by blowfish.isaac.cs.berkeley.edu (8.8.7/8.8.7) id MAA03758; Sun, 13 Aug 2000 12:48:04 -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] One more time, with authority Date: 13 Aug 2000 12:47:44 -0700 Organization: A poorly-installed InterNetNews site Lines: 30 Distribution: isaac Message-ID: <8n6u10$3lc$1@blowfish.isaac.cs.berkeley.edu> References: <00081211044000.11176@frankenstein.lumbercartel.com> <8n506v$33r$1@blowfish.isaac.cs.berkeley.edu> <00081306195300.06842@frankenstein.lumbercartel.com> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu But you brushed off the points I raised, without truly addressing them. Have you read 1201? You'll see that it bans devices whose primary purpose is to circumvent. This means that trafficking in devices which have a secondary, non-circumventing purpose *can* indeed be banned, if all the necessary conditions are met. So suppose we read 1201(a) as saying ``If you build a DeCSS-like device with the primary purpose of viewing independently-produced movies, that is legal; if you build a DeCSS-like device primarily for the purpose of indiscriminately viewing anything you can get your hands on, that is illegal.'' I'm not saying this is the only way to read 1201(a), but let's just imagine the consequences of such an interpretation, as a gedankenexperiment. This reading is not on its face absurd. It is not blatantly inconsistent with the plain language of 1201(a). It does not create a monopoly power backed by the might and majesty of the State. It is not the equivalent of a Royal Charter. It does not require legendary boldness to uphold. It is not a judicial endorsement that filmmaking is a game only the Big Boys can legally play. Sure, there are arguments and objections we can raise against such a reading. But it is not a slam-dunk, ``we win, the case is over, we might as well go home'' sort of situation. There is something to be argued here. It is a real issue. It is an issue which I think your analysis has not adequately addressed. I think your reasoning is a good start. But I do not think this is nearly so black-and-white as you are making it out to be. From dvd-discuss-owner@eon.law.harvard.edu Sun Aug 13 16:50:57 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA06508 for dvd-discuss-outgoing; Sun, 13 Aug 2000 16:50:57 -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 QAA06505 for ; Sun, 13 Aug 2000 16:50:55 -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 NAA16003 for ; Sun, 13 Aug 2000 13:50:27 -0700 Received: (from daw@localhost) by blowfish.isaac.cs.berkeley.edu (8.8.7/8.8.7) id MAA03818; Sun, 13 Aug 2000 12:59:18 -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] Authorized devices? Date: 13 Aug 2000 12:59:08 -0700 Organization: A poorly-installed InterNetNews site Lines: 33 Distribution: isaac Message-ID: <8n6umc$3n9$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 anatoli tubman wrote: > It is clear that MPAA would not like some > mods while it doesn't care about others > (voltage conversion). Where the line is > drawn? How I, the customer, can possibly > know what mods I can and cannot make? Devil's advocate view: The line is drawn whereever the copyright holder says it is drawn. You, the customer, don't need to know exactly where the line is drawn. There is no requirement in 1201 for notice to the customer. So don't do any of those funny things, and you won't be in any danger of breaking the law. In any case, whereever the line is drawn, DeCSS has surely crossed that line. Ok, now, where's the inconsistency between the devil's advocate view and the plain language of the law? Sure, the devil's advocate view is crazy. It is bad policy. It is self-destructive. It is all of those things, and more. But what is the _legal_ argument against it? Remember, this is a question of law, not of facts. This is a question of what the law actually says, not of what we'd like it to say. The point is: It might be better to prepare a compelling, reasoned, legal argument that the devil's advocate view cannot possibly be the right way to interpet 1201(a). It's not enough to say ``but that's crazy!''. Plenty of other people have been saying ``but that's crazy!'' for some time now, and it's not clear that it has done much good. :-) And, yes, of course, this issue has been raised and discussed many times on this list. Others on this mailing list have indeed posted their arguments of why the devil's advocate view ought not be accepted by the court. But the question is still up in the air on what Kaplan will rule.... From dvd-discuss-owner@eon.law.harvard.edu Sun Aug 13 17:57:41 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA08762 for dvd-discuss-outgoing; Sun, 13 Aug 2000 17:57:41 -0400 Received: from smtp03.primenet.com (smtp03.primenet.com [206.165.6.133]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA08759 for ; Sun, 13 Aug 2000 17:57:40 -0400 Received: (from daemon@localhost) by smtp03.primenet.com (8.9.3/8.9.3) id OAA14979 for ; Sun, 13 Aug 2000 14:56:27 -0700 (MST) Received: from sessions.phx.primenet.com(206.132.239.114), claiming to be "heorot.lumbercartel.com" via SMTP by smtp03.primenet.com, id smtpdAAAZlaGmD; Sun Aug 13 14:56:21 2000 Received: from frankenstein.lumbercartel.com (IDENT:dcs@frankenstein.lumbercartel.com [192.168.6.2]) by heorot.lumbercartel.com (8.9.3/8.8.7) with SMTP id OAA10868 for ; Sun, 13 Aug 2000 14:57:15 -0700 From: "D. C. Sessions" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] One more time, with authority Date: Sun, 13 Aug 2000 14:11:39 -0700 X-Mailer: KMail [version 1.0.29] Content-Type: text/plain References: <00081211044000.11176@frankenstein.lumbercartel.com> <00081306195300.06842@frankenstein.lumbercartel.com> <8n6u10$3lc$1@blowfish.isaac.cs.berkeley.edu> In-Reply-To: <8n6u10$3lc$1@blowfish.isaac.cs.berkeley.edu> MIME-Version: 1.0 Message-Id: <00081314571500.07416@frankenstein.lumbercartel.com> Content-Transfer-Encoding: 8bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sun, 13 Aug 2000, David A. Wagner wrote: > Have you read 1201? Yes. > You'll see that it bans devices whose primary purpose > is to circumvent. This means that trafficking in devices which have a > secondary, non-circumventing purpose *can* indeed be banned, if all the > necessary conditions are met. The intent of a device is not objectively determinable. Courts are used to determine the intent behind *actions*, although they are rightly cautious in doing so. But the intent of a *device* is not the same as the intent of the builders (at least according to the CCA, and we're trying to follow their strategy here.) Secondly, we still haven't nailed down 'circumvention' -- which was the entire point of my example. The reason for my example of the indie producer was that _in_that_instance_, I read the CCA model as concluding that 'circumvention' has occured even though the producer is the one playing the DVD. > Sure, there are arguments and objections we can raise against such > a reading. But it is not a slam-dunk, ``we win, the case is over, we > might as well go home'' sort of situation. There is something to be > argued here. It is a real issue. It is an issue which I think your > analysis has not adequately addressed. > > I think your reasoning is a good start. But I do not think this is > nearly so black-and-white as you are making it out to be. I have no problem with the idea that there are flaws in my reasoning. I could be indulging in either faulty inference or overlooking cases that escape from my supposed-to-be-exhaustive enumerations. What I'm hoping for, though, is to have the specific logical flaws pointed out rather than a blanket statement that the argument isn't conclusive, because detailed criticism leaves the possibility that the logic can be corrected. Hey, I have no problem with admitting that I think like an engineer, I are one. Engineers break big problems down into smaller and smaller ones until they're small enough to solve independently. (Politicians glue together smaller problems until the hairball is too big to solve at all.) No comments on lawyers ;-) -- | Microsoft: "A reputation for releasing inferior software will make | | it more difficult for a software vendor to induce customers to pay | | for new products or new versions of existing products." | +----------- D. C. & M. V. Sessions ----------+ From dvd-discuss-owner@eon.law.harvard.edu Sun Aug 13 18:00:32 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA08861 for dvd-discuss-outgoing; Sun, 13 Aug 2000 18:00:32 -0400 Received: from web123.yahoomail.com (web123.yahoomail.com [205.180.60.191]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id SAA08858 for ; Sun, 13 Aug 2000 18:00:28 -0400 Received: (qmail 3225 invoked by uid 60001); 13 Aug 2000 22:00:13 -0000 Message-ID: <20000813220013.3224.qmail@web123.yahoomail.com> Received: from [128.122.253.144] by web123.yahoomail.com; Sun, 13 Aug 2000 15:00:13 PDT Date: Sun, 13 Aug 2000 15:00:13 -0700 (PDT) From: "Tuyet A. Ngoc Tran" Subject: [dvd-discuss] news To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Has anyone seen this? I wonder how this case will be influenced by the NYC - DeCSS case. ----- LOS ANGELES, Aug. 9 /PRNewswire/ -- Scour, the world's leading search destination for entertainment, today announced its powerful legal team to defend against the recent suit brought by the Recording Industry Association of America (RIAA), the Motion Picture Association of America (MPAA) and the National Music Publishers Association (NMPA). Acclaimed trial lawyer Fred Bartlit of Chicago-based Bartlit Beck Herman Palenchar & Scott, LLP, leads Scour's defense team and is accompanied by prominent Harvard Law School professor, Arthur R. Miller, and intellectual property rights author, Peter Toren. On July 20, the RIAA, MPAA and NMPA filed suit against Scour, alleging that the company facilitates the illegal distribution of copyrighted material over the Internet. From the company's inception, all Scour products have fully complied with all applicable laws, and the company firmly denies the allegations asserted by the RIAA, MPAA and NMPA. "Scour's services have always been, and will continue to be completely legal, and have conformed from day one with all applicable laws and guidelines, including the Digital Millennium Copyright Act of 1998", said Scour president Dan Rodrigues. "With the powerhouse team Fred Bartlit has assembled, and with Arthur Miller and Peter Toren on our side, we could not have better counsel to defend Scour and its users' rights to share digital information online." Powerful Litigation Team, Led by Fred Bartlit Chicago-based Bartlit Beck Herman Palenchar & Scott, LLP leads Scour's litigation team. Among many high-profile clients, including DuPont, General Motors, Johnson & Johnson, NCR, and Dun & Bradstreet, Bartlit Beck currently represents the Canadian Department of Justice in its litigation against the tobacco industry. The National Law Journal calls "Bartlit Beck one of the nation's hottest defense boutiques, with a roster of litigation stars. Nearly every year one or more Bartlit Beck cases makes the list of the top defense wins of the year" according to the April 1997 article. Fred Bartlit, one of the nation's most successful corporate litigators, leads the Bartlit Beck team and brings an impressive history of courtroom wins. The National Law Journal praises "Bartlit as one of the most successful corporate defense litigators ever, with a long history of big wins in a wide variety of cases, including fraud, antitrust, products liability and intellectual property" (November 8, 1999). Often, he represents big corporations such as General Motors, Pratt & Whitney, Dun &Bradstreet, and Amoco. Twice, Bartlit has argued before the U.S. Supreme Court. Bartlit's handpicked legal team includes members of Bartlit Beck's noted roster of litigation stars, including Shawn Fagan, former editor of the Harvard Law Review and magna cum laude Harvard Law School graduate. Before joining Bartlit Beck, Fagan served as a clerk for United States Supreme Court Chief Justice William Rehnquist, and for the United States Court of Appeals for the Washington, D.C. Circuit. Prominent Harvard Law Professor, Arthur Miller Professor Arthur Miller, a copyright and litigation expert in the areas of civil procedure and the implications of computer technology for personal privacy, accompanies the team to assist with Scour's case against the RIAA, MPAA and NMPA. A prominent legal expert and regular media commentator on complex litigation and copyright law, Miller has been a moderator for a nationally acclaimed PBS series and has hosted his own legal program on CourtTV. He appears regularly on countless television programs, including ABC's Good Morning America to offer his opinions and provide his legal expertise on a variety of cases. He is nationally known for his work on court procedure, copyright, unfair competition and right of privacy. The distinguished Bruce Bromley Professor of Law at Harvard Law School, Miller actively serves on both the faculty of Harvard Law School and is co-director of the Berkman Center for Internet and Technology -- a research program founded to explore cyberspace, share in its study and help pioneer its development. The Center, established in 1995 as the Center on Law and Technology grew from a seminar Miller initiated in 1993 on cutting-edge Internet issues. Intellectual Property Rights Author, Peter Toren Peter Toren, an intellectual property rights expert, serves as Scour's counsel in New York. Formerly the lead prosecutor for the Computer Crime and Intellectual Property Section of the U.S. Department of Justice, Toren currently heads the Intellectual Property Group at New York-based Brown & Wood, LLP and is a partner in the firm. Toren is a Special Professor of Law at Hofstra University where he teaches a course on cyberlaw. In addition, Toren wrote the Department of Justice's monograph on Federal Prosecution and Violations of Intellectual Property Rights -- a document regarded by all U.S. Attorneys' Offices as the user's manual for the prosecution of Intellectual Property crimes. Mr. Toren prosecuted the largest software piracy case ever in the United States (U.S. vs. U-Top). About Scour Scour is a privately held corporation based in Los Angeles, CA. Scour develops and markets Scour.com, the Internet's leading entertainment search site; Scour Exchange (SX(TM)), an application and multimedia search tool; Scour Drive(TM), a free, unlimited file storage service; and Scour Caster, an online radio community built with myCaster technology. Scour's product suite currently provides the easiest and fastest way for users to find, store, play and share audio, video and images. Scour was founded in 1997 by five UCLA computer science students and is backed by Michael Ovitz and The Yucaipa Companies. SOURCE Scour CONTACT: Miguel Cortez, miguelc@carryoncom.com, or Casey Morse,caseym@carryoncom.com, both of CarryOn Communication, Inc., 310-385-8530, for Scour; or Scour News Bureau, 877-707-6867 Web site: http://www.scour.com __________________________________________________ Do You Yahoo!? Yahoo! Mail – Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Sun Aug 13 18:26:07 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA08962 for dvd-discuss-outgoing; Sun, 13 Aug 2000 18:26:07 -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 SAA08959 for ; Sun, 13 Aug 2000 18:26:03 -0400 Received: (from phil@localhost) by ramtop.demon.co.uk (8.9.3/8.9.3) id XAA28879 for dvd-discuss@eon.law.harvard.edu; Sun, 13 Aug 2000 23:08:41 +0100 Date: Sun, 13 Aug 2000 23:08:40 +0100 From: Phil Harrison To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Authorized devices? Message-ID: <20000813230840.A28852@ramtop.demon.co.uk> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <8n6umc$3n9$1@blowfish.isaac.cs.berkeley.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii Content-Disposition: inline User-Agent: Mutt/1.2.5i In-Reply-To: <8n6umc$3n9$1@blowfish.isaac.cs.berkeley.edu>; from daw@cs.berkeley.edu on Sun, Aug 13, 2000 at 12:59:08PM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sun, Aug 13, 2000 at 12:59:08PM -0700, David A. Wagner wrote: > anatoli tubman wrote: > > It is clear that MPAA would not like some > > mods while it doesn't care about others > > (voltage conversion). Where the line is > > drawn? How I, the customer, can possibly > > know what mods I can and cannot make? > > Devil's advocate view: > The line is drawn whereever the copyright holder says it is drawn. > You, the customer, don't need to know exactly where the line is drawn. > There is no requirement in 1201 for notice to the customer. > So don't do any of those funny things, and you won't be in any danger > of breaking the law. > In any case, whereever the line is drawn, DeCSS has surely crossed that line. > OK, but: 1) How can you grant authority to the consumer without notifying them of the specific restrictions on that authority. 2) How can you add restrictions to authority that deny fair use whan the statue clearly states that it does not affect fair use? DeCSS only circumvents if it decrypts without authority. If the copyright holder is not able to deny fair use, then are they able to deny authority to use DeCSS? -- Phil Harrison From dvd-discuss-owner@eon.law.harvard.edu Sun Aug 13 19:08:53 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA10153 for dvd-discuss-outgoing; Sun, 13 Aug 2000 19:08:53 -0400 Received: from smtp01.primenet.com (smtp01.primenet.com [206.165.6.131]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id TAA10150 for ; Sun, 13 Aug 2000 19:08:52 -0400 Received: (from daemon@localhost) by smtp01.primenet.com (8.9.3/8.9.3) id QAA18288 for ; Sun, 13 Aug 2000 16:08:10 -0700 (MST) Received: from sessions.phx.primenet.com(206.132.239.114), claiming to be "heorot.lumbercartel.com" via SMTP by smtp01.primenet.com, id smtpdAAAyqaaRJ; Sun Aug 13 16:08:02 2000 Received: from frankenstein.lumbercartel.com (IDENT:dcs@frankenstein.lumbercartel.com [192.168.6.2]) by heorot.lumbercartel.com (8.9.3/8.8.7) with SMTP id QAA11185 for ; Sun, 13 Aug 2000 16:07:50 -0700 From: "D. C. Sessions" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Authorized devices? Date: Sun, 13 Aug 2000 15:50:56 -0700 X-Mailer: KMail [version 1.0.29] Content-Type: text/plain References: <8n6umc$3n9$1@blowfish.isaac.cs.berkeley.edu> <20000813230840.A28852@ramtop.demon.co.uk> In-Reply-To: <20000813230840.A28852@ramtop.demon.co.uk> MIME-Version: 1.0 Message-Id: <00081316075000.07517@frankenstein.lumbercartel.com> Content-Transfer-Encoding: 8bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sun, 13 Aug 2000, Phil Harrison wrote: > On Sun, Aug 13, 2000 at 12:59:08PM -0700, David A. Wagner wrote: > > anatoli tubman wrote: > > > It is clear that MPAA would not like some > > > mods while it doesn't care about others > > > (voltage conversion). Where the line is > > > drawn? How I, the customer, can possibly > > > know what mods I can and cannot make? > > > > Devil's advocate view: > > The line is drawn whereever the copyright holder says it is drawn. > > You, the customer, don't need to know exactly where the line is drawn. > > There is no requirement in 1201 for notice to the customer. > > So don't do any of those funny things, and you won't be in any danger > > of breaking the law. > > In any case, whereever the line is drawn, DeCSS has surely crossed that line. > > > OK, but: > > 1) How can you grant authority to the consumer without notifying them of > the specific restrictions on that authority. [DA] Authority is granted to the _player_, not the _consumer_. If Sony wants to put out DVDs that will only play on Sony players, that is their right. Aside: there is nothing to prevent the producers from ceasing to press any more DVDs for extant players, thus placing consumers in the position of having to buy new players for their new DVD purchases. It would be technically straightforward to give the new players backward compatibility, thus ensuring a smooth transition. Ideally, there would be overlapping windows of player and DVD compatibility such that not only would Really Old players become useless (planned obsolescence) but Really Old DVDs would too, ensuring continued turnover. Not that this bears on the present legal discussion... > 2) How can you add restrictions to authority that deny fair use whan the statue > clearly states that it does not affect fair use? DeCSS only circumvents if it > decrypts without authority. If the copyright holder is not able to deny fair > use, then are they able to deny authority to use DeCSS? [DA] Fair use is not affected. You just can't trade in illicit acess devices. It is the plaintiffs' position that any device that is capable of the so-called "fair use" accesses is also useful for illegal circumvention, and given the relative markets for piracy and literary criticism it's patent that the primary use will be circumvention, thus these devices are illegal. -- | Microsoft: "A reputation for releasing inferior software will make | | it more difficult for a software vendor to induce customers to pay | | for new products or new versions of existing products." | +----------- D. C. & M. V. Sessions ----------+ From dvd-discuss-owner@eon.law.harvard.edu Sun Aug 13 20:41:00 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA10853 for dvd-discuss-outgoing; Sun, 13 Aug 2000 20:41:00 -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 UAA10850 for ; Sun, 13 Aug 2000 20:40:56 -0400 Received: (from phil@localhost) by ramtop.demon.co.uk (8.9.3/8.9.3) id BAA29611 for dvd-discuss@eon.law.harvard.edu; Mon, 14 Aug 2000 01:34:55 +0100 Date: Mon, 14 Aug 2000 01:34:54 +0100 From: Phil Harrison To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Authorized devices? Message-ID: <20000814013454.A29532@ramtop.demon.co.uk> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <8n6umc$3n9$1@blowfish.isaac.cs.berkeley.edu> <20000813230840.A28852@ramtop.demon.co.uk> <00081316075000.07517@frankenstein.lumbercartel.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii Content-Disposition: inline User-Agent: Mutt/1.2.5i In-Reply-To: <00081316075000.07517@frankenstein.lumbercartel.com>; from dcs@mailhost.lumbercartel.com on Sun, Aug 13, 2000 at 03:50:56PM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sun, Aug 13, 2000 at 03:50:56PM -0700, D. C. Sessions wrote: > On Sun, 13 Aug 2000, Phil Harrison wrote: > > OK, but: > > > > 1) How can you grant authority to the consumer without notifying them of > > the specific restrictions on that authority. > > [DA] Authority is granted to the _player_, not the _consumer_. If Sony wants > to put out DVDs that will only play on Sony players, that is their right. > I think you need to seperate the technical issues from the legal issues though. Sony might be within their rights to include technical measure to attempt to restrict the players that can be used to play a DVD. However, once they sell a DVD, can they deny the authority to do any or all of the things that fall within the definition of fair use? > > > 2) How can you add restrictions to authority that deny fair use whan the statue > > clearly states that it does not affect fair use? DeCSS only circumvents if it > > decrypts without authority. If the copyright holder is not able to deny fair > > use, then are they able to deny authority to use DeCSS? > > [DA] Fair use is not affected. You just can't trade in illicit acess devices. >From my reading of the statute, you can't trade in devices that circumvent the technical measure. But circumvention is described as permitting access without the authority of the copyright owner. However, if you legally purchase a DVD disk, can the copyright owner deny the authority to make fair use of the content? If they cannot legally deny that authority, then DeCSS is being used for authorised access and is therefore not circumventing. > It is the plaintiffs' position that any device that is capable of the so-called > "fair use" accesses is also useful for illegal circumvention, and given the > relative markets for piracy and literary criticism it's patent that the primary > use will be circumvention, thus these devices are illegal. > Well I also wonder whether the CSS scrambling system can be described as effectively controlling access. I know that the definition of "effective" has nothing to do with the strength of the encryption, but the CSS system does not seem to be designed to determine whether or not the person accessing the DVD has legally purchased it or not. All it does is try to restrict the devices that can be used to view the disk, regardless of whether it is a legal copy or not. -- Phil Harrison From dvd-discuss-owner@eon.law.harvard.edu Sun Aug 13 21:44:37 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA12263 for dvd-discuss-outgoing; Sun, 13 Aug 2000 21:44:37 -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 VAA12256 for ; Sun, 13 Aug 2000 21:44:36 -0400 Received: by aero.org id <17100-4>; Sun, 13 Aug 2000 18:44:11 -0700 Received: from mhultra.aero.org(130.221.88.102) via SMTP by aero.org, id smtpdBAAa12909; Sun Aug 13 18:43:59 2000 Received: from lahub01-a3.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Sun, 13 Aug 2000 18:43:50 -0700 Subject: Re: [dvd-discuss] Authorized devices? 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 08/13/2000 06:43:49 PM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Date: Sun, 13 Aug 2000 18:44:04 -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Fine printe Phil Harrison @eon.law.harvard.edu on 08/13/2000 03:27:01 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] Authorized devices? On Sun, Aug 13, 2000 at 12:59:08PM -0700, David A. Wagner wrote: > anatoli tubman wrote: > > It is clear that MPAA would not like some > > mods while it doesn't care about others > > (voltage conversion). Where the line is > > drawn? How I, the customer, can possibly > > know what mods I can and cannot make? > > Devil's advocate view: > The line is drawn whereever the copyright holder says it is drawn. > You, the customer, don't need to know exactly where the line is drawn. > There is no requirement in 1201 for notice to the customer. > So don't do any of those funny things, and you won't be in any danger > of breaking the law. > In any case, whereever the line is drawn, DeCSS has surely crossed that line. > OK, but: 1) How can you grant authority to the consumer without notifying them of the specific restrictions on that authority. 2) How can you add restrictions to authority that deny fair use whan the statue clearly states that it does not affect fair use? DeCSS only circumvents if it decrypts without authority. If the copyright holder is not able to deny fair use, then are they able to deny authority to use DeCSS? -- Phil Harrison From dvd-discuss-owner@eon.law.harvard.edu Sun Aug 13 21:44:36 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA12257 for dvd-discuss-outgoing; Sun, 13 Aug 2000 21:44:36 -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 VAA12253 for ; Sun, 13 Aug 2000 21:44:35 -0400 Received: by aero.org id <17097-5>; Sun, 13 Aug 2000 18:44:11 -0700 Received: from mhultra.aero.org(130.221.88.102) via SMTP by aero.org, id smtpdAAAa12909; Sun Aug 13 18:43:57 2000 Received: from lahub01-a3.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Sun, 13 Aug 2000 18:43:02 -0700 Subject: Re: [dvd-discuss] Authorized devices? 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 08/13/2000 06:43:01 PM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Date: Sun, 13 Aug 2000 18:44:04 -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu THe line is not drawn where the copyright holder draws it...that's the crux of the issue here. Whether technology should enable the line to be drawn by the copyright holder (ad infinitum) vs society's benefit to have works become public domain. Self Destructive....Wll Lenin said that a capitalist will sell you the rope to hang him with...a lesson to all who value money over freedom... I'm beginning to lean towards the idea that rather than protecting the intersests of the creators's great grandchildren maybe the USA should demonstrate it's generosity again and say to the world: we don't need WIPO. We can create far more than the rest of you combined and still make money and give it back to you. WIPO, WTO are obsolete. daw@cs.berkeley.edu (David A. Wagner)@eon.law.harvard.edu on 08/13/2000 01:51:44 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] Authorized devices? anatoli tubman wrote: > It is clear that MPAA would not like some > mods while it doesn't care about others > (voltage conversion). Where the line is > drawn? How I, the customer, can possibly > know what mods I can and cannot make? Devil's advocate view: The line is drawn whereever the copyright holder says it is drawn. You, the customer, don't need to know exactly where the line is drawn. There is no requirement in 1201 for notice to the customer. So don't do any of those funny things, and you won't be in any danger of breaking the law. In any case, whereever the line is drawn, DeCSS has surely crossed that line. Ok, now, where's the inconsistency between the devil's advocate view and the plain language of the law? Sure, the devil's advocate view is crazy. It is bad policy. It is self-destructive. It is all of those things, and more. But what is the _legal_ argument against it? Remember, this is a question of law, not of facts. This is a question of what the law actually says, not of what we'd like it to say. The point is: It might be better to prepare a compelling, reasoned, legal argument that the devil's advocate view cannot possibly be the right way to interpet 1201(a). It's not enough to say ``but that's crazy!''. Plenty of other people have been saying ``but that's crazy!'' for some time now, and it's not clear that it has done much good. :-) And, yes, of course, this issue has been raised and discussed many times on this list. Others on this mailing list have indeed posted their arguments of why the devil's advocate view ought not be accepted by the court. But the question is still up in the air on what Kaplan will rule.... From dvd-discuss-owner@eon.law.harvard.edu Sun Aug 13 21:50:52 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA12411 for dvd-discuss-outgoing; Sun, 13 Aug 2000 21:50:52 -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 VAA12408 for ; Sun, 13 Aug 2000 21:50:51 -0400 Received: by aero.org id <17097-7>; Sun, 13 Aug 2000 18:50:27 -0700 Received: from mhultra.aero.org(130.221.88.102) via SMTP by aero.org, id smtpdAAAa13078; Sun Aug 13 18:50:13 2000 Received: from lahub01-a3.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Sun, 13 Aug 2000 18:49:37 -0700 Subject: Re: [dvd-discuss] Authorized devices? 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 08/13/2000 06:49:36 PM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Date: Sun, 13 Aug 2000 18:50:16 -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Fine print..actually the DVD people are also trying put the fine print shrinklicence into non-computer oriented copyright material.. Phil Harrison @eon.law.harvard.edu on 08/13/2000 03:27:01 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] Authorized devices? On Sun, Aug 13, 2000 at 12:59:08PM -0700, David A. Wagner wrote: > anatoli tubman wrote: > > It is clear that MPAA would not like some > > mods while it doesn't care about others > > (voltage conversion). Where the line is > > drawn? How I, the customer, can possibly > > know what mods I can and cannot make? > > Devil's advocate view: > The line is drawn whereever the copyright holder says it is drawn. > You, the customer, don't need to know exactly where the line is drawn. > There is no requirement in 1201 for notice to the customer. > So don't do any of those funny things, and you won't be in any danger > of breaking the law. > In any case, whereever the line is drawn, DeCSS has surely crossed that line. > OK, but: 1) How can you grant authority to the consumer without notifying them of the specific restrictions on that authority. 2) How can you add restrictions to authority that deny fair use whan the statue clearly states that it does not affect fair use? DeCSS only circumvents if it decrypts without authority. If the copyright holder is not able to deny fair use, then are they able to deny authority to use DeCSS? -- Phil Harrison From dvd-discuss-owner@eon.law.harvard.edu Sun Aug 13 22:06:57 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA12648 for dvd-discuss-outgoing; Sun, 13 Aug 2000 22:06:57 -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 WAA12645 for ; Sun, 13 Aug 2000 22:06:56 -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 TAA16894 for ; Sun, 13 Aug 2000 19:06:28 -0700 Received: (from daw@localhost) by blowfish.isaac.cs.berkeley.edu (8.8.7/8.8.7) id SAA05435; Sun, 13 Aug 2000 18:15:18 -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] One more time, with authority Date: 13 Aug 2000 18:14:59 -0700 Organization: A poorly-installed InterNetNews site Lines: 28 Distribution: isaac Message-ID: <8n7h6j$59q$1@blowfish.isaac.cs.berkeley.edu> References: <00081211044000.11176@frankenstein.lumbercartel.com> <00081306195300.06842@frankenstein.lumbercartel.com> <8n6u10$3lc$1@blowfish.isaac.cs.berkeley.edu> <00081314571500.07416@frankenstein.lumbercartel.com> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu D. C. Sessions wrote: > I have no problem with the idea that there are flaws in my reasoning. > I could be indulging in either faulty inference or overlooking cases > that escape from my supposed-to-be-exhaustive enumerations. > What I'm hoping for, though, is to have the specific logical flaws > pointed out rather than a blanket statement that the argument isn't > conclusive, because detailed criticism leaves the possibility that > the logic can be corrected. But I just did that! Maybe I need to explain this with symbolic logic. Let P,Q be predicates defined as follows: P = "it is possible to use DeCSS to view an independently-produced movie" Q = "it is possible that trafficking in DeCSS could be prohibited by 1201(a)" Your claim, if I understand correctly, is that P => ~Q (P implies not-Q). You give some detailed arguments to support this claim, but for the moment, we don't need to know what those arguments are. My email gave an explicit example to show that both P and Q can be simultaneously true. This is a _counterexample_ to your claim. If you accept that my example truly is possible, then you must accept that your claim is incorrect. It is left as an exercise to the reader to go through your logic and find the error in your chain of deduction which led to the incorrect conclusion. (I gave some hints in my previous emails.) From dvd-discuss-owner@eon.law.harvard.edu Sun Aug 13 22:23:13 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA13167 for dvd-discuss-outgoing; Sun, 13 Aug 2000 22:23:13 -0400 Received: from smtp02.primenet.com (smtp02.primenet.com [206.165.6.132]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id WAA13164 for ; Sun, 13 Aug 2000 22:23:11 -0400 Received: (from daemon@localhost) by smtp02.primenet.com (8.9.3/8.9.3) id TAA20568 for ; Sun, 13 Aug 2000 19:21:01 -0700 (MST) Received: from sessions.phx.primenet.com(206.132.239.114), claiming to be "heorot.lumbercartel.com" via SMTP by smtp02.primenet.com, id smtpdAAA_.aq6N; Sun Aug 13 19:20:44 2000 Received: from frankenstein.lumbercartel.com (IDENT:dcs@frankenstein.lumbercartel.com [192.168.6.2]) by heorot.lumbercartel.com (8.9.3/8.8.7) with SMTP id TAA11673 for ; Sun, 13 Aug 2000 19:22:02 -0700 From: "D. C. Sessions" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Authorized devices? Date: Sun, 13 Aug 2000 18:59:12 -0700 X-Mailer: KMail [version 1.0.29] Content-Type: text/plain References: <00081316075000.07517@frankenstein.lumbercartel.com> <20000814013454.A29532@ramtop.demon.co.uk> In-Reply-To: <20000814013454.A29532@ramtop.demon.co.uk> MIME-Version: 1.0 Message-Id: <00081319220200.07716@frankenstein.lumbercartel.com> Content-Transfer-Encoding: 8bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sun, 13 Aug 2000, you wrote: > On Sun, Aug 13, 2000 at 03:50:56PM -0700, D. C. Sessions wrote: > > On Sun, 13 Aug 2000, Phil Harrison wrote: > > > OK, but: > > > > > > 1) How can you grant authority to the consumer without notifying them of > > > the specific restrictions on that authority. > > > > [DA] Authority is granted to the _player_, not the _consumer_. If Sony wants > > to put out DVDs that will only play on Sony players, that is their right. > > > I think you need to seperate the technical issues from the legal issues though. > Sony might be within their rights to include technical measure to attempt to > restrict the players that can be used to play a DVD. However, once they sell a > DVD, can they deny the authority to do any or all of the things that fall > within the definition of fair use? [DA] As for technical means, all they need to do is include keys for Sony players only. And according to the plaintiffs' position they have the right to authorize only those players that they wish to authorize, since the "authority of the copyright holder" is a property of the player. (This legal theory is so consistent with the design of CSS that one is led to believe that CSS was designed specifically to implement it.) [DA] There is nothing to prevent consumers from performing those actions which are generally covered by "fair use" except that it so happens that there are no legal devices which would enable them to do so. An obstacle of fact, not of law. > > > 2) How can you add restrictions to authority that deny fair use whan the statue > > > clearly states that it does not affect fair use? DeCSS only circumvents if it > > > decrypts without authority. If the copyright holder is not able to deny fair > > > use, then are they able to deny authority to use DeCSS? > > > > [DA] Fair use is not affected. You just can't trade in illicit acess devices. > > >From my reading of the statute, you can't trade in devices that circumvent the > technical measure. But circumvention is described as permitting access without > the authority of the copyright owner. > However, if you legally purchase a DVD disk, can the copyright owner deny the > authority to make fair use of the content? If they cannot legally deny that > authority, then DeCSS is being used for authorised access and is therefore not > circumventing. [DA] The DVD CCA has been delegated by the great majority of copyright holders (not owners) to authorize devices permitted to play their content. Since any unapproved device will be operating without their authority, its primary use (and presumptively intent) will be accessing content without authorization, i.e. circumvention. Therefore an illegal device. > > It is the plaintiffs' position that any device that is capable of the so-called > > "fair use" accesses is also useful for illegal circumvention, and given the > > relative markets for piracy and literary criticism it's patent that the primary > > use will be circumvention, thus these devices are illegal. > > > Well I also wonder whether the CSS scrambling system can be described as > effectively controlling access. I know that the definition of "effective" has > nothing to do with the strength of the encryption, but the CSS system does not > seem to be designed to determine whether or not the person accessing the DVD has > legally purchased it or not. All it does is try to restrict the devices that can > be used to view the disk, regardless of whether it is a legal copy or not. [DA]Which is perfectly effective if you see the "authority of the copyright holder" as being delegated to the player. CSS keeps unapproved players from accessing CSS-protected content. Obviously there's no way to tell if a consumer has acquired the content legitimately, but there *is* a way to make sure that the content can only be played on approved devices. [dcs] I suppose that you could argue that the plaintiffs have taken the position that since the authority resides with the player, they have authorized anyone with an approved player to access any and all DVDs that might come into their posession, counterfeit or not. Wouldn't it be a hoot if the Court found in their favor against DeCSS on *that* ground? -- | Microsoft: "A reputation for releasing inferior software will make | | it more difficult for a software vendor to induce customers to pay | | for new products or new versions of existing products." | +----------- D. C. & M. V. Sessions ----------+ From dvd-discuss-owner@eon.law.harvard.edu Sun Aug 13 22:24:20 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA13259 for dvd-discuss-outgoing; Sun, 13 Aug 2000 22:24:20 -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 WAA13255 for ; Sun, 13 Aug 2000 22:24:19 -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 TAA16975 for ; Sun, 13 Aug 2000 19:23:51 -0700 Received: (from daw@localhost) by blowfish.isaac.cs.berkeley.edu (8.8.7/8.8.7) id SAA05479; Sun, 13 Aug 2000 18:32:42 -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] One more time, with authority Date: 13 Aug 2000 18:32:32 -0700 Organization: A poorly-installed InterNetNews site Lines: 44 Distribution: isaac Message-ID: <8n7i7g$5b6$1@blowfish.isaac.cs.berkeley.edu> References: <00081211044000.11176@frankenstein.lumbercartel.com> <00081306195300.06842@frankenstein.lumbercartel.com> <8n6u10$3lc$1@blowfish.isaac.cs.berkeley.edu> <00081314571500.07416@frankenstein.lumbercartel.com> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu D. C. Sessions wrote: > On Sun, 13 Aug 2000, David A. Wagner wrote: > > [1201(a)] bans devices whose primary purpose > > is to circumvent. This means that trafficking in devices which have a > > secondary, non-circumventing purpose *can* indeed be banned, if all the > > necessary conditions are met. > > The intent of a device is not objectively determinable. It seems pretty clear to me that the language of 1201(a)(2) refers to the purpose for which the device was built or designed, e.g., the purpose of the designer/implementor in creating the device. I don't see where you get the idea that the law would have us look at a device as possessing intent in itself. Just go read the plain language of the law: (2) No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that - (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; (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 (C) is marketed by that person or another acting in concert with that person with that person's knowledge for use in circumventing a technological measure that effectively controls access to a work protected under this title. The mere fact that there exist non-infringing (or non-circumventing) uses for a device does NOT inherently protect that device from being prohibited by 1201(a)(2), as should be abundantly clear from the above. Any one of (a)(2)(A), (a)(2)(B), and (a)(3)(C) could provide a means of action against trafficking in such a device, if the necessary conditions are met. Where's the wiggle room? IANAL, but the language of the law sure looks pretty unambiguous to me. From dvd-discuss-owner@eon.law.harvard.edu Sun Aug 13 22:30:14 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA13327 for dvd-discuss-outgoing; Sun, 13 Aug 2000 22:30:14 -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 WAA13324 for ; Sun, 13 Aug 2000 22:30:13 -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 TAA16999 for ; Sun, 13 Aug 2000 19:29:45 -0700 Received: (from daw@localhost) by blowfish.isaac.cs.berkeley.edu (8.8.7/8.8.7) id SAA05530; Sun, 13 Aug 2000 18:38:35 -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] One more time, with authority Date: 13 Aug 2000 18:37:25 -0700 Organization: A poorly-installed InterNetNews site Lines: 19 Distribution: isaac Message-ID: <8n7igl$5ce$1@blowfish.isaac.cs.berkeley.edu> References: <00081211044000.11176@frankenstein.lumbercartel.com> <00081306195300.06842@frankenstein.lumbercartel.com> <8n6u10$3lc$1@blowfish.isaac.cs.berkeley.edu> <00081314571500.07416@frankenstein.lumbercartel.com> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu D. C. Sessions wrote: > Secondly, we still haven't nailed down 'circumvention' -- which was the entire > point of my example. The reason for my example of the indie producer was that > _in_that_instance_, I read the CCA model as concluding that 'circumvention' > has occured even though the producer is the one playing the DVD. Have the MPAA or the DVD-CCA or the other plaintiffs truly claimed this? I suspect they might argue that they have not committed themselves to any such position. All I've seen from the plaintiffs' lawyers is vague generalities (which, incidentally, left me disappointed -- I was hoping for a bit more insight into their view of the authority structure). I haven't seen anything decisive one way or the other from them specifically regarding this particular example. As far as I can tell, they might or might not agree with you, and it's hard to tell which. But, if you have any citations or specific quotes in mind, I would definitely be interested to be proven wrong. From dvd-discuss-owner@eon.law.harvard.edu Sun Aug 13 23:58:44 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA13946 for dvd-discuss-outgoing; Sun, 13 Aug 2000 23:58:44 -0400 Received: from smtp03.primenet.com (smtp03.primenet.com [206.165.6.133]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id XAA13943 for ; Sun, 13 Aug 2000 23:58:43 -0400 Received: (from daemon@localhost) by smtp03.primenet.com (8.9.3/8.9.3) id UAA29743 for ; Sun, 13 Aug 2000 20:57:30 -0700 (MST) Received: from sessions.phx.primenet.com(206.132.239.114), claiming to be "heorot.lumbercartel.com" via SMTP by smtp03.primenet.com, id smtpdAAAxJaic6; Sun Aug 13 20:57:23 2000 Received: from frankenstein.lumbercartel.com (IDENT:dcs@frankenstein.lumbercartel.com [192.168.6.2]) by heorot.lumbercartel.com (8.9.3/8.8.7) with SMTP id UAA12136 for ; Sun, 13 Aug 2000 20:58:17 -0700 From: "D. C. Sessions" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] One more time, with authority Date: Sun, 13 Aug 2000 20:55:49 -0700 X-Mailer: KMail [version 1.0.29] Content-Type: text/plain References: <00081211044000.11176@frankenstein.lumbercartel.com> <00081314571500.07416@frankenstein.lumbercartel.com> <8n7h6j$59q$1@blowfish.isaac.cs.berkeley.edu> In-Reply-To: <8n7h6j$59q$1@blowfish.isaac.cs.berkeley.edu> MIME-Version: 1.0 Message-Id: <00081320581700.07893@frankenstein.lumbercartel.com> Content-Transfer-Encoding: 8bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sun, 13 Aug 2000, you wrote: > D. C. Sessions wrote: > > I have no problem with the idea that there are flaws in my reasoning. > > I could be indulging in either faulty inference or overlooking cases > > that escape from my supposed-to-be-exhaustive enumerations. > > What I'm hoping for, though, is to have the specific logical flaws > > pointed out rather than a blanket statement that the argument isn't > > conclusive, because detailed criticism leaves the possibility that > > the logic can be corrected. > > But I just did that! > > Maybe I need to explain this with symbolic logic. > Let P,Q be predicates defined as follows: > P = "it is possible to use DeCSS to view an independently-produced movie" > Q = "it is possible that trafficking in DeCSS could be prohibited by 1201(a)" > > Your claim, if I understand correctly, is that P => ~Q (P implies not-Q). > You give some detailed arguments to support this claim, but for the > moment, we don't need to know what those arguments are. I'm trying to put this in the context of the specific case. What I *think* you are suggesting is that my original premise -- that there was a crime committed at the time of the viewing -- was incorrect. Instead, the only crime was the posession of the LiViD player in the first place. -- | Microsoft: "A reputation for releasing inferior software will make | | it more difficult for a software vendor to induce customers to pay | | for new products or new versions of existing products." | +----------- D. C. & M. V. Sessions ----------+ From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 14 00:18:11 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA15487 for dvd-discuss-outgoing; Mon, 14 Aug 2000 00:18:11 -0400 Received: from smtp03.primenet.com (smtp03.primenet.com [206.165.6.133]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id AAA15484 for ; Mon, 14 Aug 2000 00:18:10 -0400 Received: (from daemon@localhost) by smtp03.primenet.com (8.9.3/8.9.3) id VAA07131 for ; Sun, 13 Aug 2000 21:16:55 -0700 (MST) Received: from sessions.phx.primenet.com(206.132.239.114), claiming to be "heorot.lumbercartel.com" via SMTP by smtp03.primenet.com, id smtpdAAAdmaG2n; Sun Aug 13 21:16:44 2000 Received: from frankenstein.lumbercartel.com (IDENT:dcs@frankenstein.lumbercartel.com [192.168.6.2]) by heorot.lumbercartel.com (8.9.3/8.8.7) with SMTP id VAA12248 for ; Sun, 13 Aug 2000 21:17:09 -0700 From: "D. C. Sessions" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] One more time, with authority Date: Sun, 13 Aug 2000 20:58:44 -0700 X-Mailer: KMail [version 1.0.29] Content-Type: text/plain References: <00081211044000.11176@frankenstein.lumbercartel.com> <00081314571500.07416@frankenstein.lumbercartel.com> <8n7i7g$5b6$1@blowfish.isaac.cs.berkeley.edu> In-Reply-To: <8n7i7g$5b6$1@blowfish.isaac.cs.berkeley.edu> MIME-Version: 1.0 Message-Id: <00081321170901.07893@frankenstein.lumbercartel.com> Content-Transfer-Encoding: 8bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sun, 13 Aug 2000, you wrote: > D. C. Sessions wrote: > > On Sun, 13 Aug 2000, David A. Wagner wrote: > > > [1201(a)] bans devices whose primary purpose > > > is to circumvent. This means that trafficking in devices which have a > > > secondary, non-circumventing purpose *can* indeed be banned, if all the > > > necessary conditions are met. > > > > The intent of a device is not objectively determinable. > > It seems pretty clear to me that the language of 1201(a)(2) refers > to the purpose for which the device was built or designed, e.g., the > purpose of the designer/implementor in creating the device. I don't > see where you get the idea that the law would have us look at a device > as possessing intent in itself. > > Just go read the plain language of the law: > > (2) No person shall manufacture, import, offer to the public, provide, > or otherwise traffic in any technology, product, service, device, > component, or part thereof, that - > > (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; > > (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 > > (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. Disjunction or conjunction? One would expect from the language that this is a conjunction but I didn't see any evidence presented at trial supporting (C). Unless 'published' is the same as 'marketed', which isn't all that hard to support but one would at least expect some hand-waving. WRT the 'purpose' issue, all three of the above establish some kind of purpose. (A) establishes design intent, (B) establishes market utility, which is a kind of intent aside from the designer, and (C) establishes a combination of the two. A disjunction wouldn't need (C) but a the plaintiffs don't seem to have made any effort at anything other than (B). -- | Microsoft: "A reputation for releasing inferior software will make | | it more difficult for a software vendor to induce customers to pay | | for new products or new versions of existing products." | +----------- D. C. & M. V. Sessions ----------+ From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 14 03:31:37 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id DAA16532 for dvd-discuss-outgoing; Mon, 14 Aug 2000 03:31:37 -0400 Received: from mc-qout4.whowhere.com (mc-qout4.whowhere.com [209.185.123.18]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id DAA16529 for ; Mon, 14 Aug 2000 03:31:36 -0400 Received: from Unknown/Local ([?.?.?.?]) by my-deja.com; Mon Aug 14 00:30:56 2000 To: dvd-discuss@eon.law.harvard.edu Date: Mon, 14 Aug 2000 00:30:56 -0700 From: "anatoli tubman" Message-ID: Mime-Version: 1.0 X-Sent-Mail: off X-Mailer: MailCity Service Subject: [dvd-discuss] Authorized devices, again. X-Sender-Ip: 12.11.149.5 Organization: My Deja Email (http://www.my-deja.com:80) Content-Type: text/plain; charset=us-ascii Content-Language: en Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu At this point, no one playing DA answered a simple question: what *is* an authorized device. I grant you that a brand new Sony player, sealed with Sony seal, is authorized. Now I'm starting to perform modifications to it. At which point the device ceases to be authorized? Since there's an infinitude of possible modifications, and copyright holders cannot possibly specify in advance which are OK and which are not, one possibility remains: only unmodified devices are authorized. But I thought I *own* the player! Don't my ownership rights override their authorization policy? --- anatoli --== Sent via Deja.com http://www.deja.com/ ==-- Before you buy. From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 14 06:43:01 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id GAA17961 for dvd-discuss-outgoing; Mon, 14 Aug 2000 06:43:01 -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 GAA17958 for ; Mon, 14 Aug 2000 06:42:59 -0400 Received: from localhost (ssyreeni@localhost) by kruuna.Helsinki.FI (8.10.1/8.10.1) with ESMTP id e7EAghI18893 for ; Mon, 14 Aug 2000 13:42:44 +0300 (EET DST) X-Authentication-Warning: kruuna.Helsinki.FI: ssyreeni owned process doing -bs Date: Mon, 14 Aug 2000 13:42:42 +0300 (EET DST) From: Sampo A Syreeni To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] One more time, with authority In-Reply-To: <8n7i7g$5b6$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 13 Aug 2000, David A. Wagner wrote: >> The intent of a device is not objectively determinable. > >It seems pretty clear to me that the language of 1201(a)(2) refers >to the purpose for which the device was built or designed, e.g., the >purpose of the designer/implementor in creating the device. I think there was a thread a couple of months ago in which a distinction was drawn between intent and purpose. One shouldn't forget that the purpose of the device, the intent of the programmer and the intent of the distributor are quite separate and not all referenced to in 1201. Sampo Syreeni , aka decoy, student/math/Helsinki university From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 14 06:45:50 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id GAA18073 for dvd-discuss-outgoing; Mon, 14 Aug 2000 06:45:50 -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 GAA18070 for ; Mon, 14 Aug 2000 06:45:48 -0400 Received: from localhost (ssyreeni@localhost) by kruuna.Helsinki.FI (8.10.1/8.10.1) with ESMTP id e7EAjYU19444 for ; Mon, 14 Aug 2000 13:45:34 +0300 (EET DST) X-Authentication-Warning: kruuna.Helsinki.FI: ssyreeni owned process doing -bs Date: Mon, 14 Aug 2000 13:45:34 +0300 (EET DST) From: Sampo A Syreeni To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] One more time, with authority In-Reply-To: <00081321170901.07893@frankenstein.lumbercartel.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, 13 Aug 2000, D. C. Sessions wrote: [Snip] >> (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 [Snip] > >Disjunction or conjunction? Disjunction: the (B) clause ends with an or. >One would expect from the language that this is a conjunction but I didn't >see any evidence presented at trial supporting (C). You would, if it were reasonably tight. However, it's more of the catch-all type. Read the fine print. Sampo Syreeni , aka decoy, student/math/Helsinki university From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 14 06:48:29 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id GAA18157 for dvd-discuss-outgoing; Mon, 14 Aug 2000 06:48:29 -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 GAA18154 for ; Mon, 14 Aug 2000 06:48:28 -0400 Received: from mediaone.net (h0060b03c5b8b.ne.mediaone.net [24.128.18.77]) by chmls05.mediaone.net (8.8.7/8.8.7) with ESMTP id GAA11831 for ; Mon, 14 Aug 2000 06:48:14 -0400 (EDT) Message-ID: <3997CE6F.FEAB7A5C@mediaone.net> Date: Mon, 14 Aug 2000 06:48:15 -0400 From: Sphere X-Mailer: Mozilla 4.73 [en] (WinNT; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] One more time, with authority References: <00081211044000.11176@frankenstein.lumbercartel.com> <00081306195300.06842@frankenstein.lumbercartel.com> <8n6u10$3lc$1@blowfish.isaac.cs.berkeley.edu> <00081314571500.07416@frankenstein.lumbercartel.com> <8n7i7g$5b6$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: > > D. C. Sessions wrote: > > On Sun, 13 Aug 2000, David A. Wagner wrote: > > > [1201(a)] bans devices whose primary purpose > > > is to circumvent. This means that trafficking in devices which have a > > > secondary, non-circumventing purpose *can* indeed be banned, if all the > > > necessary conditions are met. > > > > The intent of a device is not objectively determinable. > > It seems pretty clear to me that the language of 1201(a)(2) refers > to the purpose for which the device was built or designed, e.g., the > purpose of the designer/implementor in creating the device. I don't > see where you get the idea that the law would have us look at a device > as possessing intent in itself. > > Just go read the plain language of the law: > > (2) No person shall manufacture, import, offer to the public, provide, > or otherwise traffic in any technology, product, service, device, > component, or part thereof, that - > > (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; > > (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 > > (C) is marketed by that person or another acting in concert with > that person with that person's knowledge for use in circumventing > a technological measure that effectively controls access to a > work protected under this title. > > The mere fact that there exist non-infringing (or non-circumventing) > uses for a device does NOT inherently protect that device from being > prohibited by 1201(a)(2), as should be abundantly clear from the above. > > Any one of (a)(2)(A), (a)(2)(B), and (a)(3)(C) could provide a means of > action against trafficking in such a device, if the necessary conditions > are met. > > Where's the wiggle room? IANAL, but the language of the law sure looks > pretty unambiguous to me. I would argue against (a)(2)(B) and (a)(2)(C) that DeCSS has no commercial purpose, and that it is not marketted by its' creator. Open Source software is not created with commercial intent and is not subject to regulation under commerce powers. There are people who traffic in Open Source software, but these are not the creators of that software. The GPL requires that the software be available at no cost. -- Sphere. No permanence. No self. No perfection. From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 14 06:59:39 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id GAA18236 for dvd-discuss-outgoing; Mon, 14 Aug 2000 06:59:39 -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 GAA18233 for ; Mon, 14 Aug 2000 06:59:37 -0400 Received: from sites.inka.de (puric.inka.de [212.227.14.17]) by mail.inka.de with esmtp id 13OHxj-0008R7-00; Mon, 14 Aug 2000 12:59:23 +0200 Received: from localhost by sites.inka.de with local id 13OHxj-0004Yf-00; Mon, 14 Aug 2000 12:59:23 +0200 Date: Mon, 14 Aug 2000 12:59:23 +0200 From: Sham Gardner To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] One more time, with authority Message-ID: <20000814125923.A17216@inka.de> References: <00081211044000.11176@frankenstein.lumbercartel.com> <00081306195300.06842@frankenstein.lumbercartel.com> <8n6u10$3lc$1@blowfish.isaac.cs.berkeley.edu> <00081314571500.07416@frankenstein.lumbercartel.com> <8n7i7g$5b6$1@blowfish.isaac.cs.berkeley.edu> <3997CE6F.FEAB7A5C@mediaone.net> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0i In-Reply-To: <3997CE6F.FEAB7A5C@mediaone.net>; from sphere1952@mediaone.net on Mon, Aug 14, 2000 at 06:48:15AM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Mon, Aug 14, 2000 at 06:48:15AM -0400, Sphere wrote: > Open Source software is not created with commercial intent What about the installers of commercial Linux distributions such as Redhat and SuSE? I've just checked the YaST (SuSE installer) license and its terms are very similar to the GPL. SuSE is very much a commercial company with commercial intent. > The GPL requires that the software be available at no cost. No it doesn't. Read it again. Its terms usually lead to the software being available at little or no cost, but that is by no means a requirement. Sham -- http://sites.inka.de/risctaker/DeCSS/ "The first speech censored, the first thought forbidden, the first freedom denied, chains us all irrevocably." (Jean-Luc Picard) From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 14 07:30:34 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id HAA18420 for dvd-discuss-outgoing; Mon, 14 Aug 2000 07:30:34 -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 HAA18417 for ; Mon, 14 Aug 2000 07:30:34 -0400 Received: from mediaone.net (h0060b03c5b8b.ne.mediaone.net [24.128.18.77]) by chmls06.mediaone.net (8.8.7/8.8.7) with ESMTP id HAA04616 for ; Mon, 14 Aug 2000 07:30:19 -0400 (EDT) Message-ID: <3997D844.29843E81@mediaone.net> Date: Mon, 14 Aug 2000 07:30:12 -0400 From: Sphere X-Mailer: Mozilla 4.73 [en] (WinNT; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] One more time, with authority References: <00081211044000.11176@frankenstein.lumbercartel.com> <00081306195300.06842@frankenstein.lumbercartel.com> <8n6u10$3lc$1@blowfish.isaac.cs.berkeley.edu> <00081314571500.07416@frankenstein.lumbercartel.com> <8n7i7g$5b6$1@blowfish.isaac.cs.berkeley.edu> <3997CE6F.FEAB7A5C@mediaone.net> <20000814125923.A17216@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: > > On Mon, Aug 14, 2000 at 06:48:15AM -0400, Sphere wrote: > > Open Source software is not created with commercial intent > > What about the installers of commercial Linux distributions such as Redhat > and SuSE? I've just checked the YaST (SuSE installer) license and its terms > are very similar to the GPL. SuSE is very much a commercial company with > commercial intent. > > > The GPL requires that the software be available at no cost. > > No it doesn't. Read it again. Its terms usually lead to the software being > available at little or no cost, but that is by no means a requirement. > > Sham > The terms permit its' being sold, but also require that the software source be freely available -- although the cost of the media of transmission may be recovered (shipping and handling). The author of GPL licensed software has no recourse if someone copies the software and gives it away. The author of GPL licensed software is even required to make the source available so that someone can copy it and give it away. The restrictions upon providing the source separate from the binaries are so strict that most, if not all, publishers of Open Source software supply the source with the binaries. The entire purpose of the GPL is to prevent people from embedding Open Source software within a commercial product which is not subject to the same requirement that its' source is feely available. Commercial distribution of Open Source software is permitted, but not commercialization of the software itself. That is, the intent of GPL is that the software be free in exactly the same sense as the freedom of speech in the first amendment. It is not the intent of GPL that people be prevented from making money using or providing the software, only that the software itself not be fettered by by commercial intent. -- Sphere. No permanence. No self. No perfection. From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 14 07:53:42 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id HAA19214 for dvd-discuss-outgoing; Mon, 14 Aug 2000 07:53:42 -0400 Received: from bigbrother.net (root@w131.z208177180.chi-il.dsl.cnc.net [208.177.180.131]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id HAA19211 for ; Mon, 14 Aug 2000 07:53:41 -0400 Received: from localhost (sterno@localhost) by bigbrother.net (8.10.1/8.9.3) with ESMTP id e7EBrOb01536 for ; Mon, 14 Aug 2000 06:53:24 -0500 Date: Mon, 14 Aug 2000 06:53:24 -0500 (CDT) From: Steve Stearns To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] One more time, with authority In-Reply-To: <3997CE6F.FEAB7A5C@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 Mon, 14 Aug 2000, Sphere wrote: > I would argue against (a)(2)(B) and (a)(2)(C) that DeCSS has > no commercial purpose, and that it is not marketted by its' > creator. Open Source software is not created with commercial > intent and is not subject to regulation under commerce powers. This may not be as clear cut as it seems. In the Napster case, the judge is interpreting that something need not be sold for a profit to be considered to have a commercial benefit. In that case, one argument Napster has made is that the software allows people to get music for free that they otherwise would have to pay money for. The commercial interest there is the money from that cost savings. Here, if one believed that DeCSS actually had the ability to make it simpler to copy and distribute pirated DVD's then a commercial interest is plausible. > There are people who traffic in Open Source software, but > these are not the creators of that software. The GPL > requires that the software be available at no cost. While it is true that the GPL requires that the software be "free" (both as in liberty and as in beer), it doesn't mean that by definition there is no commercial interest. Take a company like RedHat or Suse. Certainly these companies have a commercial interest in developing Linux and selling what can otherwise be obtained for free. ---Steve From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 14 08:23:06 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id IAA19380 for dvd-discuss-outgoing; Mon, 14 Aug 2000 08:23:06 -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 IAA19377 for ; Mon, 14 Aug 2000 08:23:05 -0400 Received: from mediaone.net (h0060b03c5b8b.ne.mediaone.net [24.128.18.77]) by chmls05.mediaone.net (8.8.7/8.8.7) with ESMTP id IAA12412 for ; Mon, 14 Aug 2000 08:22:51 -0400 (EDT) Message-ID: <3997E49B.1A7900C0@mediaone.net> Date: Mon, 14 Aug 2000 08:22:51 -0400 From: Sphere X-Mailer: Mozilla 4.73 [en] (WinNT; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] One more time, with 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 Steve Stearns wrote: > > On Mon, 14 Aug 2000, Sphere wrote: > > > I would argue against (a)(2)(B) and (a)(2)(C) that DeCSS has > > no commercial purpose, and that it is not marketted by its' > > creator. Open Source software is not created with commercial > > intent and is not subject to regulation under commerce powers. > > This may not be as clear cut as it seems. In the Napster case, the judge > is interpreting that something need not be sold for a profit to be > considered to have a commercial benefit. In that case, one argument > Napster has made is that the software allows people to get music for free > that they otherwise would have to pay money for. The commercial interest > there is the money from that cost savings. > > Here, if one believed that DeCSS actually had the ability to make it > simpler to copy and distribute pirated DVD's then a commercial interest is > plausible. Yes, but not on the part of the creator(s). "(2) No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that -" If in the middle of some newsworthy event I were to utter some really juicy sound-byte, and a news organization picks it up and uses it to make money by putting it on the news, neither I as its' creator, nor the sound-byte itself has any commercial intent. I am merely engaging in free speech. Neither I nor the sound is commercial -- only the use it has been put to is commercial. Congress does not have the power to regulate my speech based upon what others might do with it. In the same vein, congress does not have the right to regulate the creation of software which has no commercial intent even if someone later comes along with a commercial intent and finds a use for it. Any right congress has to regulate does not come up until the commercial intent arises. (There might be some other clause which could be used, but not commerce.) --- On the Napster case, I would claim that the users of Napster are engaged in freedom of association, and that freedom of association takes precidence over Copyright. Where do you think all this "fair use" docrine came from? It came from the fact that there's a conflict between copyright and the first amendment. The need here is to assert and maintain that the first amendment wins in any conflict between it and copyright. The original intent in copyright was to provide a narrow permission for congress to establish a limited monopoloy. The intent of the first amendment; which followed the copyright clause in time, was to provide a broad prohibition against encroachment by government actions upon the right of the people to associate. > > There are people who traffic in Open Source software, but > > these are not the creators of that software. The GPL > > requires that the software be available at no cost. > > While it is true that the GPL requires that the software be "free" (both > as in liberty and as in beer), it doesn't mean that by definition there is > no commercial interest. Take a company like RedHat or Suse. Certainly > these companies have a commercial interest in developing Linux and selling > what can otherwise be obtained for free. > > ---Steve -- Sphere. No permanence. No self. No perfection. From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 14 09:47:25 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA21519 for dvd-discuss-outgoing; Mon, 14 Aug 2000 09:47:25 -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 JAA21516 for ; Mon, 14 Aug 2000 09:47:24 -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 JAA24648 for ; Mon, 14 Aug 2000 09:47:10 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id JAA13844; Mon, 14 Aug 2000 09:47:08 -0400 (EDT) Date: Mon, 14 Aug 2000 09:47:08 -0400 (EDT) Message-Id: <200008141347.JAA13844@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] One more time, with authority In-Reply-To: <3997CE6F.FEAB7A5C@mediaone.net> References: <00081211044000.11176@frankenstein.lumbercartel.com> <00081306195300.06842@frankenstein.lumbercartel.com> <8n6u10$3lc$1@blowfish.isaac.cs.berkeley.edu> <00081314571500.07416@frankenstein.lumbercartel.com> <8n7i7g$5b6$1@blowfish.isaac.cs.berkeley.edu> <3997CE6F.FEAB7A5C@mediaone.net> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu sphere1952@mediaone.net writes: > I would argue against (a)(2)(B) and (a)(2)(C) that DeCSS has > no commercial purpose, and that it is not marketted by its' > creator. Open Source software is not created with commercial > intent and is not subject to regulation under commerce powers. > > There are people who traffic in Open Source software, but > these are not the creators of that software. The GPL > requires that the software be available at no cost. I don't know why I'm responding to this troll, but: 1) The defendant in the New York case is Eric Corley of 2600 (a/k/a Emmanuel Goldstein), who did not create the software and is clearly trafficing in it. 2) There are open source licenses other than the GPL, many of which allow binary-only distribution of the program itself or derivative works. (Apache, for instance, is distributed under such a license). 3) Many open-source software authors firmly believe themselves to be engaged in commercial activity (at Red Hat, SuSE, Helixcode, etc.) As long as I'm on the subject, it's worth noting that many significant contributors to open source software packages are not at all hostile to closed-source commercial software, and work on both by choice. For example, Linus Torvalds is, IIRC, an architect of Transmeta's code morphing software, which is firmly closed-source. rst From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 14 11:46:40 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA22763 for dvd-discuss-outgoing; Mon, 14 Aug 2000 11:46:40 -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 LAA22760 for ; Mon, 14 Aug 2000 11:46:38 -0400 Message-ID: <20000814154551.25046.qmail@web510.mail.yahoo.com> Received: from [131.44.121.4] by web510.mail.yahoo.com; Mon, 14 Aug 2000 08:45:51 PDT Date: Mon, 14 Aug 2000 08:45:51 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] One more time, with 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 --- Sphere wrote: > I would argue against (a)(2)(B) and (a)(2)(C) that DeCSS has > no commercial purpose, and that it is not marketted by its' > creator. Open Source software is not created with commercial > intent and is not subject to regulation under commerce powers. This is an argument that I've made several times. In the last year, the Supreme Court has come down with two commerce clause decisions that continue the trend started with US v Lopez toward a less forgiving commerce power authority. While they haven't done it explicitly, I think that de facto Wickard v Filburn has been overturned. There is also a very strong (in my opinion) argument that commerce clause protection for copyright is forbidden if it can't be upheld solely via the copyright clause. It is surely "unnecessary and improper" to use general powers to circumvent the restrictions of specific powers. __________________________________________________ Do You Yahoo!? Yahoo! Mail – Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 14 11:47:41 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA22816 for dvd-discuss-outgoing; Mon, 14 Aug 2000 11:47:41 -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 LAA22813 for ; Mon, 14 Aug 2000 11:47:40 -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 KAA21284 for ; Mon, 14 Aug 2000 10:47:27 -0500 (CDT) Message-ID: <399814B2.78A1B671@uic.edu> Date: Mon, 14 Aug 2000 10:48:02 -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] One more time, with 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 From: "D. C. Sessions" > Now this appears to be founded on the unexamined premise that there is an > identity between "the blessing of the DVDCCA" and "the authority of the > copyright holder." I believe that the unexamined (and untrue) premise is that the MPAA companies, and the MPAA companies alone, are the only "copyright holders" with a legal interest in CSS. Typical Hollywood arrogance to assume that the MPAA "IS" movies, and that no one else matters. Especially when they are attempting to create a universal distribution format that will presumably become ubiquitous. I still think that the public domain argument should have been made. CSS encrypts not only copyrighted works, but also public domain works. Right now. What about those? Does the public lose their right to access public domain works on DVD just because there also happen to be copyrighted works distributed in the same format? From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 14 12:12:32 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA23339 for dvd-discuss-outgoing; Mon, 14 Aug 2000 12:12:32 -0400 Received: from web515.mail.yahoo.com (web515.mail.yahoo.com [216.115.104.230]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id MAA23331 for ; Mon, 14 Aug 2000 12:12:30 -0400 Message-ID: <20000814161146.13440.qmail@web515.mail.yahoo.com> Received: from [131.44.121.4] by web515.mail.yahoo.com; Mon, 14 Aug 2000 09:11:46 PDT Date: Mon, 14 Aug 2000 09:11:46 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] One more time, with 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 --- "Robert S. Thau" wrote: > 1) The defendant in the New York case is Eric Corley of 2600 (a/k/a > Emmanuel Goldstein), who did not create the software and is > clearly trafficing in it. True, but does this relate to a commercial purpose per 1201(a)(2)(B)? Corley's stated reason for posting it was to provide more complete news coverage of a cryptanalysis story. I think this doesn't contribute to any commercially significant purpose for DeCSS as required by (a)(2)(B). > 2) There are open source licenses other than the GPL, many of which > allow binary-only distribution of the program itself or derivative > works. (Apache, for instance, is distributed under such a > license). I believe it came out at trial that DeCSS was GPL. I might be wrong -- haven't had a chance to go back and look it up. Certainly there was discussion of the GPL. Since code flowed from LiViD (Derek Fawcus) to DeCSS, one would expect DeCSS to have involuntarily become GPL. > 3) Many open-source software authors firmly believe themselves to > be engaged in commercial activity (at Red Hat, SuSE, Helixcode, > etc.) Well, I would say open source doesn't preclude commercial activity, but it isn't commercial by itself. All of your examples use open-source software as a gateway to a separate commercial activity, such as selling support, a boxed product, web-portal access, etc... I would say you have to look at the other activities to decide if there was a commercial purpose. With 2600, this purpose is to sell a "news" magazine, an activity that probably trumps commercial regulation in most cases, per strict scrutiny. I don't think 2600, LiViD, MoRE, or anybody are doing with DeCSS what RedHat does with Linux or Helixcode does with Gnome. __________________________________________________ Do You Yahoo!? Yahoo! Mail – Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 14 12:24:41 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA24254 for dvd-discuss-outgoing; Mon, 14 Aug 2000 12:24:41 -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 MAA24251 for ; Mon, 14 Aug 2000 12:24:40 -0400 Received: from ip124.bedford7.ma.pub-ip.psi.net ([38.32.77.124]) by relay21.smtp.psi.net with smtp (Exim 3.13 #3) id 13ON1n-00026s-00 for dvd-discuss@eon.law.harvard.edu; Mon, 14 Aug 2000 12:24:08 -0400 From: Ron Gustavson To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Authorized devices? Date: Mon, 14 Aug 2000 12:16:43 -0400 Message-ID: References: <00081316075000.07517@frankenstein.lumbercartel.com> <20000814013454.A29532@ramtop.demon.co.uk> <00081319220200.07716@frankenstein.lumbercartel.com> In-Reply-To: <00081319220200.07716@frankenstein.lumbercartel.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 MAA24252 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sun, 13 Aug 2000 18:59:12 -0700, "D. C. Sessions" wrote: >[dcs] I suppose that you could argue that the plaintiffs have taken the position that >since the authority resides with the player, they have authorized anyone with an >approved player to access any and all DVDs that might come into their posession, >counterfeit or not. Wouldn't it be a hoot if the Court found in their favor against >DeCSS on *that* ground? This is an interesting tack--especially if you believe that the Asian pirates are legit replicators six days a week. This may have been one way to bring them into the DVD fold. After all, VCD was a burgeoning industry in Asia for years. Very little existing [MPA content] VCDs were likely to have been legit. Perhaps preserving a market for pirate discs is a cornerstone of CSS(?) __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 14 12:36:39 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA24673 for dvd-discuss-outgoing; Mon, 14 Aug 2000 12:36:39 -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 MAA24670 for ; Mon, 14 Aug 2000 12:36:38 -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 LAA00462 for ; Mon, 14 Aug 2000 11:36:25 -0500 (CDT) Message-ID: <3998202C.EBC740BA@uic.edu> Date: Mon, 14 Aug 2000 11:37:01 -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] Napster vs DVDs 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 > On the Napster case, I would claim that the > users of Napster are engaged in freedom of > association, and that freedom of association > takes precidence over Copyright. Actually, the Napster case is completely different. It is based on a 1992 law, the Audio Home Recording Act, Title 17 Chapter 10, which, in exchange for industry royalties on blank digital audio media (§ 1003), creates a blanket exemption for all "non-commercial" copying of copyrighted music by consumers. (§ 1008). After all, it's bad law to collect "royalty payments" on blank media, on one hand, and on the other hand say that putting copyrighted music on that media is still illegal. After all, that's what the royalty payments are for. The recording industry went back a few years ago and got a new definition of "non-commercial" added -- it is now considered "commercial" activity to give someone a copy of one copyrighted work, in exchange for another. This doesn't apply to Napster though. When a person makes a file available on Napster, there is no expectation that they will receive any more or less music in "return", and when a person downloads a file from Napster, there is no requirement or expectation that they will make anything available in return. Napster simply did what the music industry thought was impossible -- they created a huge, widespread distribution system for quick, efficient, non-commercial sharing of music, and made it more attractive then the Recording Industry's own distribution system ($18.95 CDs in music stores in malls.) Napster is very carefully tailored to do exactly what the law allows, and no more. There is no micropayment system on Napster. You can't charge people to download your files, and you can't pay people for the privilege of downloading their files. All you can do is give files away, and take them for free. No such blanket exemption exists for anything other then audio recordings, so the legal strategies used by Napster don't really apply to the DVD case. From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 14 13:06:46 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA26197 for dvd-discuss-outgoing; Mon, 14 Aug 2000 13:06:46 -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 NAA26194 for ; Mon, 14 Aug 2000 13:06:41 -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 NAA16072 for ; Mon, 14 Aug 2000 13:06:26 -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 NAA18582 for ; Mon, 14 Aug 2000 13:00:00 -0400 (EDT) Mime-Version: 1.0 Message-Id: In-Reply-To: <399814B2.78A1B671@uic.edu> References: <399814B2.78A1B671@uic.edu> Date: Mon, 14 Aug 2000 12:58:22 -0400 To: dvd-discuss@eon.law.harvard.edu From: "Arnold G. Reinhold" Subject: [dvd-discuss] AT&T Labs Launches Trial of Publishing System That Helps Block Censorship Content-Type: text/plain; charset="us-ascii" ; format="flowed" Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu [I think this is relevant to plaintiff's argument that an injunction could help get DeCSS off the Internet --agr] FOR RELEASE TUESDAY, AUGUST 8, 2000 AT&T Labs Launches Trial of Publishing System That Helps Block Censorship FLORHAM PARK, NJ -- AT&T Labs today announced a two-month trial for people to post content to its Publius Web publishing system, which makes it extremely difficult to censor or edit an author's work. The Publius system operates by encrypting a document and copying it to multiple randomly selected servers. Each document is assigned a unique URL that contains pieces or "shares" of the encryption key. The Publius software finds enough shares of the encryption key necessary to decode the contents. Even if some of the shares are lost, the document can still be decoded. AT&T Labs created the Publius system as part of its ongoing research on privacy-related technologies to ensure that an individual's privacy is not compromised when viewing or posting content on the Internet. "This pioneering research into Internet privacy tools underscores AT&T's leadership and commitment to protecting customer privacy both through its policies and its technologies," said Michael Lamb, AT&T chief privacy officer. "In the past month more than 100 people have volunteered to host Publius content and 50 individuals have been confirmed to participate," said Dr. Avi Rubin, principal technical staff member at AT&T Labs and co-developer for the Publius project. Other Publius developers were Dr. Lorrie Cranor, senior technical staff member at AT&T Labs, and Marc Waldman, AT&T Labs intern and New York University computer science doctoral candidate. "Now that the Publius servers have been identified and software upgrades have been completed, we're ready for the next trial phase where people can begin to post content," Rubin added. The content can be any static document, such as an HTML, PDF or PostScript file, and is limited to 100 kilobytes during the trial. To post content, go to the Publius home page http://www.cs.nyu.edu/waldman/publius and download the client software (less than one megabyte) or use one of the available proxy servers, which can accommodate both Publius and regular URLs. AT&T Labs will evaluate the Publius system further at the conclusion of this two-month trial to see if the technology is scaleable and further examine some of its potential applications. From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 14 13:21:41 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA26345 for dvd-discuss-outgoing; Mon, 14 Aug 2000 13:21:41 -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 NAA26342 for ; Mon, 14 Aug 2000 13:21:40 -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 NAA20518 for ; Mon, 14 Aug 2000 13:21:13 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id NAA15481; Mon, 14 Aug 2000 13:21:12 -0400 (EDT) Date: Mon, 14 Aug 2000 13:21:12 -0400 (EDT) Message-Id: <200008141721.NAA15481@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] One more time, with authority In-Reply-To: <20000814161146.13440.qmail@web515.mail.yahoo.com> References: <20000814161146.13440.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: > > --- "Robert S. Thau" wrote: > > 1) The defendant in the New York case is Eric Corley of 2600 (a/k/a > > Emmanuel Goldstein), who did not create the software and is > > clearly trafficing in it. > > True, but does this relate to a commercial purpose per 1201(a)(2)(B)? > Corley's stated reason for posting it was to provide more complete news > coverage of a cryptanalysis story. I think this doesn't contribute to > any commercially significant purpose for DeCSS as required by > (a)(2)(B). I'm confused. 1201(a)(2)(B) exempts devices which circumvent access controls, but which also have some *other* substantial commercially significant purpose (or at least beyond "limited", whatever that means). So, if DeCSS has no commercially significant purpose, then it certainly has no commercially significant purpose other than to circumvent (which the law seems to treat as commercially significant by definition). That sounds to me like an argument that trafficing in it should be *prohibited* by (a)(2)(B) --- assuming of course, that CSS is an effective access control, which I'd dispute. (Note that (a)(2)(B) refers to the purpose of the device *itself*, as opposed to (a)(2)(A), which refers to the purpose of the person who designed or produced it; there's nothing I can see in (a)(2) which relates in any way at all to the purposes of a person who merely traffics in a device that he has not designed or produced, which would be Corley in Universal v. Corley). > > 2) There are open source licenses other than the GPL, many of which > > allow binary-only distribution of the program itself or derivative > > works. (Apache, for instance, is distributed under such a > > license). > > I believe it came out at trial that DeCSS was GPL. I might be wrong -- > haven't had a chance to go back and look it up. Certainly there was > discussion of the GPL. Since code flowed from LiViD (Derek Fawcus) to > DeCSS, one would expect DeCSS to have involuntarily become GPL. IIRC, DeCSS itself was originally posted closed-source, and there is some controversy about whether the source files presently in the LiViD repository are in fact source code for that distributed binary. I believe LiVid's own CSS code is GPLed, but that's something different. Some of Fawcus' code did flow from LiViD to DeCSS, which would give Fawcus a legal cause of action if that version of DeCSS were distributed in a binary-only form, barring an alternative private arrangement. But you can't assume on that basis that source code to DeCSS was ever released under the GPL; there might be an alternative private arrangment, and if not, Fawcus could simply have decided that it wasn't worth his time to pursue the matter. > > 3) Many open-source software authors firmly believe themselves to > > be engaged in commercial activity (at Red Hat, SuSE, Helixcode, > > etc.) > > Well, I would say open source doesn't preclude commercial activity, but > it isn't commercial by itself. All of your examples use open-source > software as a gateway to a separate commercial activity, such as > selling support, a boxed product, web-portal access, etc... I would say > you have to look at the other activities to decide if there was a > commercial purpose. With 2600, this purpose is to sell a "news" > magazine, an activity that probably trumps commercial regulation in > most cases, per strict scrutiny. I don't think 2600, LiViD, MoRE, or > anybody are doing with DeCSS what RedHat does with Linux or Helixcode > does with Gnome. Well, I was responding to what looked like blanket claims that open source and commercial activity are somehow mutually exclusive, and that the motives of open-source project contributers are univerally Stallmanesque, neither of which is the case. But, just looking at Red Hat, they are producing software (the RedHat Package Manager, RPM, being their best-known original work), with the intention of selling copies of it and building a business on the revenue. (They also sell support services, but sales of CDs in boxes are a major chunk of their revenue, and will be for the foreseeable future). That sure looks like commercial software development to me. rst From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 14 13:41:16 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA26656 for dvd-discuss-outgoing; Mon, 14 Aug 2000 13:41:16 -0400 Received: from mercury.clearway.com (c100.clearway.com [199.103.231.100]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id NAA26653 for ; Mon, 14 Aug 2000 13:41:15 -0400 Received: by c100.clearway.com with Internet Mail Service (5.5.2650.21) id ; Mon, 14 Aug 2000 13:44:36 -0400 Message-ID: From: Leland Ray To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] Authorized devices? Date: Mon, 14 Aug 2000 13:44:32 -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 There are devices which are illegal to modify in certain respects; guns (conversion to full auto), radios (modification to receive prohibited frequencies), automobiles (disabling air bags, pollution control devices). It may be illegal to resell a device after making certain modifications, or it may be illegal for some to buy it. I am thinking here about modifications that may make void the UL listing on a device, a school may not be able to purchase it. But in all cases, it is the government, not the corporations, that determines the impermissible conduct, and all the modifications that are not permissible fall in the line of conduct that could harm others, perpetuate fraud, or something where there is a strong public interest. From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 14 14:28:09 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA27504 for dvd-discuss-outgoing; Mon, 14 Aug 2000 14:28:09 -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 OAA27501 for ; Mon, 14 Aug 2000 14:28:04 -0400 Received: (from phil@localhost) by ramtop.demon.co.uk (8.9.3/8.9.3) id TAA32140 for dvd-discuss@eon.law.harvard.edu; Mon, 14 Aug 2000 19:27:28 +0100 Date: Mon, 14 Aug 2000 19:27:28 +0100 From: Phil Harrison To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Authorized devices? Message-ID: <20000814192728.A31123@ramtop.demon.co.uk> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <00081316075000.07517@frankenstein.lumbercartel.com> <20000814013454.A29532@ramtop.demon.co.uk> <00081319220200.07716@frankenstein.lumbercartel.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii Content-Disposition: inline User-Agent: Mutt/1.2.5i In-Reply-To: <00081319220200.07716@frankenstein.lumbercartel.com>; from dcs@mailhost.lumbercartel.com on Sun, Aug 13, 2000 at 06:59:12PM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sun, Aug 13, 2000 at 06:59:12PM -0700, D. C. Sessions wrote: > On Sun, 13 Aug 2000, you wrote: > > I think you need to seperate the technical issues from the legal issues though. > > Sony might be within their rights to include technical measure to attempt to > > restrict the players that can be used to play a DVD. However, once they sell a > > DVD, can they deny the authority to do any or all of the things that fall > > within the definition of fair use? > > [DA] As for technical means, all they need to do is include keys for Sony players > only. And according to the plaintiffs' position they have the right > to authorize only those players that they wish to authorize, since the > "authority of the copyright holder" is a property of the player. (This legal theory > is so consistent with the design of CSS that one is led to believe that CSS was > designed specifically to implement it.) > This is where the vagueness of the term "authority" in the statute is being used by the plaintiffs. But surely the DVDCCA grants authority to the player manufacturer, not to the device itself. And I don't see how it is possible to claim that the copyright holder is able to demand that only certain manufacturers devices are permitted to access the work, and yet still claim this is not interfering with fair use. > [DA] There is nothing to prevent consumers from performing those actions which > are generally covered by "fair use" except that it so happens that there are no > legal devices which would enable them to do so. An obstacle of fact, not of law. > But if fair use is preserved, the copyright holder cannot deny authority to decrypt a legally purchased DVD based on the device used to decrypt. So if the user has authority to decrypt under fair use, how can this be described as circumvention as defined in (3)(A)? > > However, if you legally purchase a DVD disk, can the copyright owner deny the > > authority to make fair use of the content? If they cannot legally deny that > > authority, then DeCSS is being used for authorised access and is therefore not > > circumventing. > > [DA] The DVD CCA has been delegated by the great majority of copyright holders > (not owners) to authorize devices permitted to play their content. Since any > unapproved device will be operating without their authority, its primary use (and > presumptively intent) will be accessing content without authorization, i.e. > circumvention. Therefore an illegal device. > But the authority granted to the player manufacturers when they pay their licensing fee to the DVDCCA is seperate to the authority granted by the copyright holder to the consumer when they purchase their DVD disk. The plaintiff's argument seems to rely on treating these as the same thing. > > > > > Well I also wonder whether the CSS scrambling system can be described as > > effectively controlling access. I know that the definition of "effective" has > > nothing to do with the strength of the encryption, but the CSS system does not > > seem to be designed to determine whether or not the person accessing the DVD has > > legally purchased it or not. All it does is try to restrict the devices that can > > be used to view the disk, regardless of whether it is a legal copy or not. > > [DA]Which is perfectly effective if you see the "authority of the copyright holder" as > being delegated to the player. CSS keeps unapproved players from > accessing CSS-protected content. Obviously there's no way to tell if a consumer > has acquired the content legitimately, but there *is* a way to make sure that the > content can only be played on approved devices. > > [dcs] I suppose that you could argue that the plaintiffs have taken the position that > since the authority resides with the player, they have authorized anyone with an > approved player to access any and all DVDs that might come into their posession, > counterfeit or not. Wouldn't it be a hoot if the Court found in their favor against > DeCSS on *that* ground? > If that was the interpretation, couldn't it be argued that the DoD ripper doesn't circumvent since it is the authorised player that does the decryption? -- Phil Harrison From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 14 14:57:21 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA27864 for dvd-discuss-outgoing; Mon, 14 Aug 2000 14:57:21 -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 OAA27861 for ; Mon, 14 Aug 2000 14:57:19 -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 OAA03033 for ; Mon, 14 Aug 2000 14:57:06 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id OAA16056; Mon, 14 Aug 2000 14:57:05 -0400 (EDT) Date: Mon, 14 Aug 2000 14:57:05 -0400 (EDT) Message-Id: <200008141857.OAA16056@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Authorized devices? In-Reply-To: <20000814192728.A31123@ramtop.demon.co.uk> References: <00081316075000.07517@frankenstein.lumbercartel.com> <20000814013454.A29532@ramtop.demon.co.uk> <00081319220200.07716@frankenstein.lumbercartel.com> <20000814192728.A31123@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: > > [dcs] I suppose that you could argue that the plaintiffs have > > taken the position that since the authority resides with the > > player, they have authorized anyone with an approved player to > > access any and all DVDs that might come into their posession, > > counterfeit or not. Wouldn't it be a hoot if the Court found in > > their favor against DeCSS on *that* ground? > > > > If that was the interpretation, couldn't it be argued that the DoD > ripper doesn't circumvent since it is the authorised player that > does the decryption? Sounds ridiculous, doesn't it? Yet, remember, our resident proxy for the industry, Jim Taylor, has said that "rippers" don't circumvent for exactly that reason: http://eon.law.harvard.edu/archive/dvd-discuss/msg06332.html So, under this interpretation of the law, "rippers", whose only *possible* purpose is to circumvent, are legal, because they parasitize a licensed implementation of the "access control" process, but alternative implementations of an access control process are *not* legal --- precisely *because* they let you build an ordinary DVD player without a license. Which shows how completely perverse a "process rights" reading of 1201(a) actually is. (These and other problems go away if you read 1201(a) to protect only processes which perform an explicit test that the *viewer* is authorized, and only to the extent that you aren't allowed to produce or traffic in devices which defeat such a test). rst From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 14 15:24:42 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA28632 for dvd-discuss-outgoing; Mon, 14 Aug 2000 15:24:42 -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 PAA28629 for ; Mon, 14 Aug 2000 15:24:30 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id PAA31049 for dvd-discuss@eon.law.harvard.edu; Mon, 14 Aug 2000 15:31:05 -0400 Date: Mon, 14 Aug 2000 15:31:00 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Encrypting books Message-ID: <20000814153100.B30680@eldritchpress.org> References: <399814B2.78A1B671@uic.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <399814B2.78A1B671@uic.edu>; from jms@uic.edu on Mon, Aug 14, 2000 at 10:48:02AM -0500 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Mon, Aug 14, 2000 at 10:48:02AM -0500, John Schulien wrote: >... > I still think that the public domain argument should have been made. > CSS encrypts not only copyrighted works, but also public domain works. > Right now. What about those? Does the public lose their right to > access public domain works on DVD just because there also happen > to be copyrighted works distributed in the same format? Barnes and Noble at http://ebooks.barnesandnoble.com is releasing a bunch of books for free in the new Microsoft Reader encrypted format. I have to assume that even those these books were originally in the public domain that it is a violation of the DMCA to "circumvent" the encryption and make them available in another format. You can compare the original of one book, "The Big Town," under the "American Literature" page, with the HTML version that was decrypted from it, at http://www.eldritchpress.org/rl/bigtown.html Maybe there will still be a chance to raise the public domain argument! -- "Eric" Eric Eldred Eldritch Press mailto:Eldred@EldritchPress.org http://www.eldritchpress.org/EricEldred.vcf From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 14 15:30:01 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA28745 for dvd-discuss-outgoing; Mon, 14 Aug 2000 15:30:01 -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 PAA28742 for ; Mon, 14 Aug 2000 15:29:59 -0400 Received: from sites.inka.de (puric.inka.de [212.227.14.17]) by mail.inka.de with esmtp id 13OPvX-0006Iq-00; Mon, 14 Aug 2000 21:29:39 +0200 Received: from localhost by sites.inka.de with local id 13OPvZ-0007t1-00; Mon, 14 Aug 2000 21:29:41 +0200 Date: Mon, 14 Aug 2000 21:29:41 +0200 From: Sham Gardner To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Encrypting books Message-ID: <20000814212941.A27546@inka.de> References: <399814B2.78A1B671@uic.edu> <20000814153100.B30680@eldritchpress.org> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0i In-Reply-To: <20000814153100.B30680@eldritchpress.org>; from eldred@eldritchpress.org on Mon, Aug 14, 2000 at 03:31:00PM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Mon, Aug 14, 2000 at 03:31:00PM -0400, Eric Eldred wrote: > On Mon, Aug 14, 2000 at 10:48:02AM -0500, John Schulien wrote: > >... > > I still think that the public domain argument should have been made. > > CSS encrypts not only copyrighted works, but also public domain works. > > Right now. What about those? Does the public lose their right to > > access public domain works on DVD just because there also happen > > to be copyrighted works distributed in the same format? > > Barnes and Noble at http://ebooks.barnesandnoble.com > is releasing a bunch of books for free in the new > Microsoft Reader encrypted format. I have to assume > that even those these books were originally in the > public domain that it is a violation of the DMCA to > "circumvent" the encryption and make them available > in another format. IIRC the DMCA says "effectively controls access to a *copyrighted* work" (emphasis mine). Surely if the work is public domain it doens't apply? Sham -- http://sites.inka.de/risctaker/DeCSS/ "The first speech censored, the first thought forbidden, the first freedom denied, chains us all irrevocably." (Jean-Luc Picard) From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 14 15:35:10 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA28800 for dvd-discuss-outgoing; Mon, 14 Aug 2000 15:35:10 -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 PAA28797 for ; Mon, 14 Aug 2000 15:35:09 -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 PAA03050 for ; Mon, 14 Aug 2000 15:34:57 -0400 Date: Mon, 14 Aug 2000 15:34:56 -0400 (EDT) From: Ole Craig To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Authorized devices? In-Reply-To: <200008141857.OAA16056@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 08/14/00 at 14:57, 'twas brillig and Robert S. Thau scrobe: [...] > > So, under this interpretation of the law, "rippers", whose only > *possible* purpose is to circumvent, are legal, because they > parasitize a licensed implementation of the "access control" process, > but alternative implementations of an access control process are *not* > legal --- precisely *because* they let you build an ordinary DVD > player without a license. > > Which shows how completely perverse a "process rights" reading of > 1201(a) actually is. > > (These and other problems go away if you read 1201(a) to protect only > processes which perform an explicit test that the *viewer* is > authorized, and only to the extent that you aren't allowed to produce > or traffic in devices which defeat such a test). In case anyone hasn't read it, the LOC comment of NARM/VSDA (the National Association of Recording Merchandisers, Inc. and the Video Software Dealers Association, Inc.) (http://www.loc.gov/copyright/reports/studies/dmca/comments/Init027.pdf) has some interesting things to say on this. In particular, they point out in choice language that copyright holders are attempting to use technological devices (under the shield of the DMCA) to "circumvent the operation of the first sale doctrine"... I also like their proposed "anti-circumvention measure" amendment to the DMCA: This section shall not apply to access control technologies which prevent access to copyrighted works beyond the term of the copyright, give the copyright owner greater rights than those granted in Section 106, or impair the rights of the owner of a copy or phonorecord lawfully made under this title as set forth in Section 109. Cheers, 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 Mon Aug 14 16:00:34 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA28986 for dvd-discuss-outgoing; Mon, 14 Aug 2000 16:00:34 -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 QAA28983 for ; Mon, 14 Aug 2000 16:00:28 -0400 Message-ID: <20000814195943.17728.qmail@web509.mail.yahoo.com> Received: from [131.44.121.4] by web509.mail.yahoo.com; Mon, 14 Aug 2000 12:59:43 PDT Date: Mon, 14 Aug 2000 12:59:43 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] One more time, with 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 --- "Robert S. Thau" wrote: > I'm confused. 1201(a)(2)(B) exempts devices which circumvent access > controls, but which also have some *other* substantial commercially > significant purpose (or at least beyond "limited", whatever that > means). > > So, if DeCSS has no commercially significant purpose, then it > certainly has no commercially significant purpose other than to > circumvent (which the law seems to treat as commercially significant > by definition). That sounds to me like an argument that trafficing > in it should be *prohibited* by (a)(2)(B) --- assuming of course, that > CSS is an effective access control, which I'd dispute. It depends on the what "other than" means and modifies. I read this to require existence of commercially significant circumvention ability to create a cause of action. My reasoning is basically that it wouldn't meet the commerce power test if it bans things devoid of any and all commercial significance. The Wickard v. Filburn test was that a noncommerce activity had to "substantially affect" interstate commerce in order to succumb to federal commerce power regulation, although, as I said in another post, the Supremes are de facto employing a tougher test of late. > IIRC, DeCSS itself was originally posted closed-source, and there is > some controversy about whether the source files presently in the > LiViD repository are in fact source code for that distributed > binary. I believe LiVid's own CSS code is GPLed, but that's something > different. One thing I've always wondered is which verson 2600 posted: pre or post Fawcus. Amazingly, the MPAA didn't solicit any evidence on this point. One would thing they would have, since a "pre-" finding would hurt the RE argument. > Some of Fawcus' code did flow from LiViD to DeCSS, which would give > Fawcus a legal cause of action if that version of DeCSS were > distributed in a binary-only form, barring an alternative private > arrangement. But you can't assume on that basis that source code to > DeCSS was ever released under the GPL; there might be an alternative > private arrangment, and if not, Fawcus could simply have decided that > it wasn't worth his time to pursue the matter. You're right. In fact, I recall there was a private arrangement between Fawcus and Johansen to waive the GPL requirements, at least temporarily. On the other hand, in his testimony, Johansen stated that DeCSS was released as "open source" [p640 22-23]. Presumably this was GPL (since that was the only licence ever discussed). I think we agree agree with regard to open source and commercial interests. My only point is that nobody is doing any of these things with DeCSS, yet. More likely, they'd eventually do them with LiViD and waive 1201(f) around as their commercial purpose. __________________________________________________ Do You Yahoo!? Yahoo! Mail – Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 14 16:10:00 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA29094 for dvd-discuss-outgoing; Mon, 14 Aug 2000 16:10:00 -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 QAA29091 for ; Mon, 14 Aug 2000 16:09:51 -0400 Message-ID: <20000814200859.20059.qmail@web509.mail.yahoo.com> Received: from [131.44.121.4] by web509.mail.yahoo.com; Mon, 14 Aug 2000 13:08:59 PDT Date: Mon, 14 Aug 2000 13:08:59 -0700 (PDT) From: Bryan Taylor Subject: RE: [dvd-discuss] Authorized devices? To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-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: > > There are devices which are illegal to modify > in certain respects; guns (conversion to full auto), > radios (modification to receive prohibited frequencies), > automobiles (disabling air bags, pollution control devices). Are you sure about these? I was under the impression that each was regulated in terms of commerce (you can't buy or sell them) or use restrictions (time/manner/place), which are often local. For example, you can't pass inspection without your catalytic converter, but if you are content to drive on a private track, you are free to remove it. __________________________________________________ Do You Yahoo!? Yahoo! Mail – Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 14 16:17:28 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA29214 for dvd-discuss-outgoing; Mon, 14 Aug 2000 16:17:28 -0400 Received: from hotmail.com (f264.law9.hotmail.com [64.4.8.139]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id QAA29211 for ; Mon, 14 Aug 2000 16:17:25 -0400 Received: from mail pickup service by hotmail.com with Microsoft SMTPSVC; Mon, 14 Aug 2000 13:16:42 -0700 Received: from 128.244.34.133 by lw9fd.law9.hotmail.msn.com with HTTP; Mon, 14 Aug 2000 GMT X-Originating-IP: [128.244.34.133] From: "Harold Eaton" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Encrypting books Date: Mon, 14 Aug 2000 16:16:41 EDT Mime-Version: 1.0 Content-Type: text/plain; format=flowed Message-ID: X-OriginalArrivalTime: 14 Aug 2000 20:16:42.0149 (UTC) FILETIME=[8F74AD50:01C0062C] Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Sham Gardner wrote: >IIRC the DMCA says "effectively controls access to a *copyrighted* work" >(emphasis mine). Surely if the work is public domain it doens't apply? Although it doesn't say this explicitly, it IS implied. But the problem here is that the *same* access control TPM is being used for copyrighted and public domain works, so it is illegal to traffic in "circumvention devices" even though they can be used to gain access to non-copyrighted works. In 200 years (I'm anticipating another couple rounds of copyright term extensions), the movie "You've got mail" will no longer be copyrighted, but it (old copies and re-releases, if any) will *still* be protected by the TPM because the same TPM is used to protect recent copyrighted works. Under the P's reading of this law, their copyright rights are (indirectly) absolute, unlimited, and perpetual. ________________________________________________________________________ Get Your Private, Free E-mail from MSN Hotmail at http://www.hotmail.com From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 14 16:47:27 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA29754 for dvd-discuss-outgoing; Mon, 14 Aug 2000 16:47:27 -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 QAA29750 for ; Mon, 14 Aug 2000 16:47:13 -0400 Received: (from phil@localhost) by ramtop.demon.co.uk (8.9.3/8.9.3) id VAA00784 for dvd-discuss@eon.law.harvard.edu; Mon, 14 Aug 2000 21:29:29 +0100 Date: Mon, 14 Aug 2000 21:29:29 +0100 From: Phil Harrison To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Authorized devices? Message-ID: <20000814212928.A712@ramtop.demon.co.uk> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <00081316075000.07517@frankenstein.lumbercartel.com> <20000814013454.A29532@ramtop.demon.co.uk> <00081319220200.07716@frankenstein.lumbercartel.com> <20000814192728.A31123@ramtop.demon.co.uk> <200008141857.OAA16056@soggy-fibers.ai.mit.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii Content-Disposition: inline User-Agent: Mutt/1.2.5i In-Reply-To: <200008141857.OAA16056@soggy-fibers.ai.mit.edu>; from rst@ai.mit.edu on Mon, Aug 14, 2000 at 02:57:05PM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Mon, Aug 14, 2000 at 02:57:05PM -0400, Robert S. Thau wrote: > Phil Harrison writes: > > > [dcs] I suppose that you could argue that the plaintiffs have > > > taken the position that since the authority resides with the > > > player, they have authorized anyone with an approved player to > > > access any and all DVDs that might come into their posession, > > > counterfeit or not. Wouldn't it be a hoot if the Court found in > > > their favor against DeCSS on *that* ground? > > > > > > > If that was the interpretation, couldn't it be argued that the DoD > > ripper doesn't circumvent since it is the authorised player that > > does the decryption? > > Sounds ridiculous, doesn't it? Yet, remember, our resident proxy for > the industry, Jim Taylor, has said that "rippers" don't circumvent for > exactly that reason: > > http://eon.law.harvard.edu/archive/dvd-discuss/msg06332.html > It's enough to make you wonder if the loss of region encoding is regarded by the MPAA as more of a threat than piracy. ;-) -- Phil Harrison From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 14 17:22:04 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA30438 for dvd-discuss-outgoing; Mon, 14 Aug 2000 17:22:04 -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 RAA30435 for ; Mon, 14 Aug 2000 17:22:03 -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 RAA19221 for ; Mon, 14 Aug 2000 17:21:46 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id RAA17029; Mon, 14 Aug 2000 17:21:45 -0400 (EDT) Date: Mon, 14 Aug 2000 17:21:45 -0400 (EDT) Message-Id: <200008142121.RAA17029@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Authorized devices? In-Reply-To: <20000814212928.A712@ramtop.demon.co.uk> References: <00081316075000.07517@frankenstein.lumbercartel.com> <20000814013454.A29532@ramtop.demon.co.uk> <00081319220200.07716@frankenstein.lumbercartel.com> <20000814192728.A31123@ramtop.demon.co.uk> <200008141857.OAA16056@soggy-fibers.ai.mit.edu> <20000814212928.A712@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: > On Mon, Aug 14, 2000 at 02:57:05PM -0400, Robert S. Thau wrote: > > Sounds ridiculous, doesn't it? Yet, remember, our resident proxy for > > the industry, Jim Taylor, has said that "rippers" don't circumvent for > > exactly that reason: > > > > http://eon.law.harvard.edu/archive/dvd-discuss/msg06332.html > > > > It's enough to make you wonder if the loss of region encoding is > regarded by the MPAA as more of a threat than piracy. ;-) Well, does anyone happen to have hard data on current and anticipated DVD sales in the various regions handy? I've always suspected there is *serious* revenue hiding in region-2 DVD markups... rst From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 14 17:57:25 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA32071 for dvd-discuss-outgoing; Mon, 14 Aug 2000 17:57:25 -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 RAA32068 for ; Mon, 14 Aug 2000 17:57:24 -0400 Received: from mediaone.net (h0060b03c5b8b.ne.mediaone.net [24.128.18.77]) by chmls05.mediaone.net (8.8.7/8.8.7) with ESMTP id RAA24528 for ; Mon, 14 Aug 2000 17:57:11 -0400 (EDT) Message-ID: <39986B37.D69E8BBF@mediaone.net> Date: Mon, 14 Aug 2000 17:57:11 -0400 From: Sphere X-Mailer: Mozilla 4.73 [en] (WinNT; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] One more time, with authority References: <20000814154551.25046.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: > > --- Sphere wrote: > > I would argue against (a)(2)(B) and (a)(2)(C) that DeCSS has > > no commercial purpose, and that it is not marketted by its' > > creator. Open Source software is not created with commercial > > intent and is not subject to regulation under commerce powers. > > This is an argument that I've made several times. In the last year, the > Supreme Court has come down with two commerce clause decisions that > continue the trend started with US v Lopez toward a less forgiving > commerce power authority. While they haven't done it explicitly, I > think that de facto Wickard v Filburn has been overturned. > > There is also a very strong (in my opinion) argument that commerce > clause protection for copyright is forbidden if it can't be upheld > solely via the copyright clause. It is surely "unnecessary and > improper" to use general powers to circumvent the restrictions of > specific powers. > Could you expand a sentence or two on each of these cases? If, as seems likely, DeCSS is deemed speech then it will come down to just what kind of speech. If DeCSS is commercial speech then I don't think the courts will give congress too much of a wall to jump over. If it is deemed political (or even better religious) speech then the wall will be well nigh impossible for congress to jump over. Mr. Corey is a publisher, and I am fluent in c. I also don't watch many movies and don't own any DVDs. If I am permitted to read DeCSS on the 2600 web site I will certainly do so, and in the process enjoy the political, and yes, even the religious aspects of the text. That is, as far as I'm concerned DeCSS is at least political speech, and if it passes from Mr. Johanson through Mr. Corey to me it will never have been commercial speech in the process. Congress does not have any valid interest in preventing me from reading DeCSS. -- Sphere. No permanence. No self. No perfection. From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 14 18:00:52 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA32176 for dvd-discuss-outgoing; Mon, 14 Aug 2000 18:00:52 -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 SAA32173 for ; Mon, 14 Aug 2000 18:00:51 -0400 Received: from mediaone.net (h0060b03c5b8b.ne.mediaone.net [24.128.18.77]) by chmls05.mediaone.net (8.8.7/8.8.7) with ESMTP id SAA26542 for ; Mon, 14 Aug 2000 18:00:38 -0400 (EDT) Message-ID: <39986C07.F088D1D5@mediaone.net> Date: Mon, 14 Aug 2000 18:00:39 -0400 From: Sphere X-Mailer: Mozilla 4.73 [en] (WinNT; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] One more time, with authority References: <20000814161146.13440.qmail@web515.mail.yahoo.com> <200008141721.NAA15481@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: > > Bryan Taylor writes: > > > > --- "Robert S. Thau" wrote: > > > 1) The defendant in the New York case is Eric Corley of 2600 (a/k/a > > > Emmanuel Goldstein), who did not create the software and is > > > clearly trafficing in it. > > > > True, but does this relate to a commercial purpose per 1201(a)(2)(B)? > > Corley's stated reason for posting it was to provide more complete news > > coverage of a cryptanalysis story. I think this doesn't contribute to > > any commercially significant purpose for DeCSS as required by > > (a)(2)(B). > > I'm confused. 1201(a)(2)(B) exempts devices which circumvent access > controls, but which also have some *other* substantial commercially > significant purpose (or at least beyond "limited", whatever that > means). > > So, if DeCSS has no commercially significant purpose, then it > certainly has no commercially significant purpose other than to > circumvent (which the law seems to treat as commercially significant > by definition). That sounds to me like an argument that trafficing in > it should be *prohibited* by (a)(2)(B) --- assuming of course, that > CSS is an effective access control, which I'd dispute. The question is if DeCSS is commercial at all. (Or just possibly, if its' commercial aspect overweighs its' political aspect.) If DeCSS is not commercial then upon what authority does congress propose to supress it? ... > rst -- Sphere. No permanence. No self. No perfection. From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 14 18:14:30 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA00500 for dvd-discuss-outgoing; Mon, 14 Aug 2000 18:14:30 -0400 Received: from ghost.bibliotrack.com (root@adsl-151-202-34-10.bellatlantic.net [151.202.34.10]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id SAA00497 for ; Mon, 14 Aug 2000 18:14:28 -0400 Received: from seltzerw ([204.243.92.112]) by ghost.bibliotrack.com (8.9.3/8.9.3) with ESMTP id SAA23329 for ; Mon, 14 Aug 2000 18:03:37 -0400 Message-Id: <4.2.2.20000814181008.00e58210@pop.bellatlantic.net> X-Sender: wseltzer@pop.bellatlantic.net X-Mailer: QUALCOMM Windows Eudora Pro Version 4.2.2 Date: Mon, 14 Aug 2000 18:13:57 -0400 To: dvd-discuss@eon.law.harvard.edu From: Wendy Seltzer Subject: Re: [dvd-discuss] One more time, with authority In-Reply-To: <20000814195943.17728.qmail@web509.mail.yahoo.com> Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii"; format=flowed Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu The claim that DeCSS is not "in commerce" does not appear to be a productive line of argument. The requirement for (a)(2)(B) is not that DeCSS itself be "commercial," but that it have a significant (negative) impact on the market for copyrighted works. We can and have disputed the facts behind that claim, but it seems futile to dispute that _if_ DeCSS facilitates widespread copying of copyrighted works, it affects interstate commerce. Lopez and VAWA notwithstanding, affecting commerce still cuts a broad swath. --Wendy At 12:59 PM 8/14/00 -0700, Bryan Taylor wrote: >--- "Robert S. Thau" wrote: > > I'm confused. 1201(a)(2)(B) exempts devices which circumvent access > > controls, but which also have some *other* substantial commercially > > significant purpose (or at least beyond "limited", whatever that > > means). > > > > So, if DeCSS has no commercially significant purpose, then it > > certainly has no commercially significant purpose other than to > > circumvent (which the law seems to treat as commercially significant > > by definition). That sounds to me like an argument that trafficing > > in it should be *prohibited* by (a)(2)(B) --- assuming of course, >that > > CSS is an effective access control, which I'd dispute. > >It depends on the what "other than" means and modifies. I read this to >require existence of commercially significant circumvention ability to >create a cause of action. My reasoning is basically that it wouldn't >meet the commerce power test if it bans things devoid of any and all >commercial significance. > >The Wickard v. Filburn test was that a noncommerce activity had to >"substantially affect" interstate commerce in order to succumb to >federal commerce power regulation, although, as I said in another post, >the Supremes are de facto employing a tougher test of late. 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 Aug 14 18:19:15 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA00863 for dvd-discuss-outgoing; Mon, 14 Aug 2000 18:19:15 -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 SAA00860 for ; Mon, 14 Aug 2000 18:19:15 -0400 Received: from mediaone.net (h0060b03c5b8b.ne.mediaone.net [24.128.18.77]) by chmls05.mediaone.net (8.8.7/8.8.7) with ESMTP id SAA06510 for ; Mon, 14 Aug 2000 18:19:02 -0400 (EDT) Message-ID: <39987056.AB48DBDE@mediaone.net> Date: Mon, 14 Aug 2000 18:19:02 -0400 From: Sphere X-Mailer: Mozilla 4.73 [en] (WinNT; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] One more time, with authority References: <4.2.2.20000814181008.00e58210@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: > > The claim that DeCSS is not "in commerce" does not appear to be a > productive line of argument. The requirement for (a)(2)(B) is not that > DeCSS itself be "commercial," but that it have a significant (negative) > impact on the market for copyrighted works. We can and have disputed the > facts behind that claim, but it seems futile to dispute that _if_ DeCSS > facilitates widespread copying of copyrighted works, it affects interstate > commerce. Lopez and VAWA notwithstanding, affecting commerce still cuts a > broad swath. > > --Wendy Broad enough to supress political expression? > At 12:59 PM 8/14/00 -0700, Bryan Taylor wrote: > > >--- "Robert S. Thau" wrote: > > > I'm confused. 1201(a)(2)(B) exempts devices which circumvent access > > > controls, but which also have some *other* substantial commercially > > > significant purpose (or at least beyond "limited", whatever that > > > means). > > > > > > So, if DeCSS has no commercially significant purpose, then it > > > certainly has no commercially significant purpose other than to > > > circumvent (which the law seems to treat as commercially significant > > > by definition). That sounds to me like an argument that trafficing > > > in it should be *prohibited* by (a)(2)(B) --- assuming of course, > >that > > > CSS is an effective access control, which I'd dispute. > > > >It depends on the what "other than" means and modifies. I read this to > >require existence of commercially significant circumvention ability to > >create a cause of action. My reasoning is basically that it wouldn't > >meet the commerce power test if it bans things devoid of any and all > >commercial significance. > > > >The Wickard v. Filburn test was that a noncommerce activity had to > >"substantially affect" interstate commerce in order to succumb to > >federal commerce power regulation, although, as I said in another post, > >the Supremes are de facto employing a tougher test of late. > > Wendy Seltzer -- wendy@seltzer.com > Fellow, Berkman Center for Internet & Society at Harvard Law School > http://cyber.law.harvard.edu/seltzer.html -- Sphere. No permanence. No self. No perfection. From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 14 18:45:59 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA01952 for dvd-discuss-outgoing; Mon, 14 Aug 2000 18:45:59 -0400 Received: from mail2.panix.com (mail2.panix.com [166.84.0.213]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id SAA01949 for ; Mon, 14 Aug 2000 18:45:58 -0400 Received: from panix.com (www2.panix.com [166.84.0.221]) by mail2.panix.com (Postfix) with SMTP id 7C1748EB5; Mon, 14 Aug 2000 18:45:41 -0400 (EDT) From: "Roy Murphy" To: Eric Eldred , dvd-discuss@eon.law.harvard.edu Date: Mon, 14 Aug 2000 18:45:41 -0400 Subject: Re: [dvd-discuss] Encrypting books X-Mailer: DMailWeb Web to Mail Gateway 2.6k, http://netwinsite.com/top_mail.htm Message-id: <39987695.4c04.0@panix.com> MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Yea, verily, thus spake Eric Eldred: >Barnes and Noble at http://ebooks.barnesandnoble.com >is releasing a bunch of books for free in the new >Microsoft Reader encrypted format. I have to assume >that even those these books were originally in the >public domain that it is a violation of the DMCA to >"circumvent" the encryption and make them available >in another format. "Fair circumvention" anyone? No one can make fair use of such a work. Since the act of circumventing a TPM on a PD work is not a violation of 1201 (since it is not protecting a copyrighted work) can a device that performs such "fair circumvention" be outlawed? I think that the Sony Betamax clearly says no. The fact that CSS and the Microsoft Reader have been used to encrypt PD materials and have not made provision for fair use of them speaks, in my mind, to a substantial non-infringing use of a device which can circumvent. Had the designers of these systems made them so that they could not be licensed for use on PD materials, they might have a stronger case in prosecuting circumvention. These arguments, if not convincing to a District Court judge, will certainly get a bigger hearing in the Circuit Court of Appeals and Supreme Court. >You can compare the original of one book, "The Big Town," >under the "American Literature" page, with the HTML version >that was decrypted from it, at >http://www.eldritchpress.org/rl/bigtown.html > >Maybe there will still be a chance to raise the public >domain argument! I do hope there is something in the record regarding out-of-copyright movies distributed on DVD. 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 Aug 14 19:24:50 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA02096 for dvd-discuss-outgoing; Mon, 14 Aug 2000 19:24:50 -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 TAA02093 for ; Mon, 14 Aug 2000 19:24:49 -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 TAA28454 for ; Mon, 14 Aug 2000 19:24:36 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id TAA18284; Mon, 14 Aug 2000 19:24:36 -0400 (EDT) Date: Mon, 14 Aug 2000 19:24:36 -0400 (EDT) Message-Id: <200008142324.TAA18284@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] One more time, with authority In-Reply-To: <4.2.2.20000814181008.00e58210@pop.bellatlantic.net> References: <20000814195943.17728.qmail@web509.mail.yahoo.com> <4.2.2.20000814181008.00e58210@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 claim that DeCSS is not "in commerce" does not appear to be a > productive line of argument. The requirement for (a)(2)(B) is not that > DeCSS itself be "commercial," but that it have a significant (negative) > impact on the market for copyrighted works [by circumvention] ... and "only limited commercially significant purpose or use" for a purpose *other* than circumvention. For (a)(2)(B) to get you off the hook, you have to argue that your device *is* commercial, in a significant, non-circumventory way --- for instance, by arguing (pace Universal v. Sony) that building a player without a DVD-CCA license is a legitimate commercial purpose, no matter what the MPAA has to say about it, and that there's a bigger market for legitimate players than there is for black boxes. Which may be a potentially viable line of argument, but it's very different from trying to argue that the non-commercial intent of (some!) open source development somehow insulates the participants from any commerce clause regulation... rst From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 14 19:28:53 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA02217 for dvd-discuss-outgoing; Mon, 14 Aug 2000 19:28:53 -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 TAA02214 for ; Mon, 14 Aug 2000 19:28:52 -0400 Received: from Jana-Server (user-37ka1ve.dialup.mindspring.com [207.69.7.238]) by tisch.mail.mindspring.net (8.9.3/8.8.5) with SMTP id TAA25900 for ; Mon, 14 Aug 2000 19:28:30 -0400 (EDT) Message-ID: <3998808E.E439D971@mindspring.com> Date: Mon, 14 Aug 2000 19:28:15 -0400 From: mickeym X-Mailer: Mozilla 4.7 [en] (Win95; I) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: RE: [dvd-discuss] Authorized devices? Content-Type: text/plain; charset=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: > > > > There are devices which are illegal to modify > > in certain respects; guns (conversion to full auto), > > radios (modification to receive prohibited frequencies), > > automobiles (disabling air bags, pollution control devices). > > Are you sure about these? I was under the impression that each was > regulated in terms of commerce (you can't buy or sell them) or use > restrictions (time/manner/place), which are often local. > > For example, you can't pass inspection without your catalytic > converter, but if you are content to drive on a private track, you are > free to remove it. > It is (has been?) legal to describe how to perform the modifications, at least. t. From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 14 19:40:25 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA03414 for dvd-discuss-outgoing; Mon, 14 Aug 2000 19:40:25 -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 TAA03411 for ; Mon, 14 Aug 2000 19:40:24 -0400 Received: from mediaone.net (h0060b03c5b8b.ne.mediaone.net [24.128.18.77]) by chmls06.mediaone.net (8.8.7/8.8.7) with ESMTP id TAA22698 for ; Mon, 14 Aug 2000 19:40:11 -0400 (EDT) Message-ID: <3998835C.4BB8230B@mediaone.net> Date: Mon, 14 Aug 2000 19:40:12 -0400 From: Sphere X-Mailer: Mozilla 4.73 [en] (WinNT; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss Subject: [dvd-discuss] Political Speech Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu DeCSS is in fact political speech. (I have a stronger opinion, but political meets my needs.) How is this to be quantified in legal terms? Is: http://www.nylug.org/7_17_00_page.html good enough? -- Sphere. No permanence. No self. No perfection. From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 14 19:45:59 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA03564 for dvd-discuss-outgoing; Mon, 14 Aug 2000 19:45:59 -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 TAA03561 for ; Mon, 14 Aug 2000 19:45:58 -0400 Received: from Jana-Server (user-37ka1ve.dialup.mindspring.com [207.69.7.238]) by granger.mail.mindspring.net (8.9.3/8.8.5) with SMTP id TAA07522 for ; Mon, 14 Aug 2000 19:45:35 -0400 (EDT) Message-ID: <399884B6.AEE9B534@mindspring.com> Date: Mon, 14 Aug 2000 19:45:58 -0400 From: mickeym X-Mailer: Mozilla 4.7 [en] (Win95; I) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Authorized devices? Content-Type: text/plain; charset=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 I also wonder whether the CSS scrambling system can be described as > effectively controlling access. I know that the definition of "effective" has > nothing to do with the strength of the encryption, but the CSS system does not > seem to be designed to determine whether or not the person accessing the DVD has > legally purchased it or not. All it does is try to restrict the devices that can > be used to view the disk, regardless of whether it is a legal copy or not. > In one of the depositions, they also claimed that their player reject a recorded copy, based on a physical difference between pressed disks and recordable disks. sks. From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 14 20:21:27 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA04429 for dvd-discuss-outgoing; Mon, 14 Aug 2000 20:21:27 -0400 Received: from tbird.iworld.com ([63.236.72.237]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id UAA04426 for ; Mon, 14 Aug 2000 20:21:27 -0400 Received: (from nobody@localhost) by tbird.iworld.com (8.10.2/8.10.2) id e7F07ed27719; Mon, 14 Aug 2000 20:07:40 -0400 Date: Mon, 14 Aug 2000 20:07:40 -0400 Message-Id: <200008150007.e7F07ed27719@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] One more time, with authority Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Sphere wrote: >I would argue against (a)(2)(B) and (a)(2)(C) that DeCSS has >no commercial purpose, and that it is not marketted by its' >creator. Open Source software is not created with commercial >intent and is not subject to regulation under commerce powers. > >There are people who traffic in Open Source software, but >these are not the creators of that software. The GPL >requires that the software be available at no cost. > Bzzzt! GNU sells custom compiles of all their source for $5000 for any CPU and platform you specify. Selling source for so much money is a different story. Oh and check out distros... sheesh. They go for $20 to $80 It's not a question of commercial software. The GPL says nothing about it being free beer. It's a question of whether it's proprietary or not. Huge difference. > >-- >Sphere. > >No permanence. No self. No perfection. 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 Mon Aug 14 20:52:37 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA06388 for dvd-discuss-outgoing; Mon, 14 Aug 2000 20:52:37 -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 UAA06385 for ; Mon, 14 Aug 2000 20:52:34 -0400 Message-ID: <20000815005151.10149.qmail@web511.mail.yahoo.com> Received: from [64.81.25.37] by web511.mail.yahoo.com; Mon, 14 Aug 2000 17:51:51 PDT Date: Mon, 14 Aug 2000 17:51:51 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] One more time, with 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 --- Wendy Seltzer wrote: > The claim that DeCSS is not "in commerce" does not appear to be a > productive line of argument. The requirement for (a)(2)(B) is not > that DeCSS itself be "commercial," but that it have a significant > (negative) impact on the market for copyrighted works. We can > and have disputed the facts behind that claim, but it seems futile > to dispute that _if_ DeCSS facilitates widespread copying of > copyrighted works, it affects interstate commerce. Lopez and > VAWA notwithstanding, affecting commerce still cuts a broad swath. I agree. I'm making an "as applied" argument. I'm not saying 1201(a)(2)(B) is "facially" invalid. I'm assuming that DeCSS would be allowed per the "fair use" decisions (Sony, Diammond Multimedia). The "impact on the market", you refer to is the fourth factor in the fair use analysis (which is given the most weight of the four). Another commercial consideration is the first factor (nature of use: educational/nonprofit vs for-profit). So my argument is that if you meet a fair use requirement, you've essentially already decided that there is no substantial impact on the market. __________________________________________________ Do You Yahoo!? Yahoo! Mail – Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 14 21:12:17 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA06579 for dvd-discuss-outgoing; Mon, 14 Aug 2000 21:12:17 -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 VAA06576 for ; Mon, 14 Aug 2000 21:12:16 -0400 Message-ID: <20000815011134.9765.qmail@web509.mail.yahoo.com> Received: from [64.81.25.37] by web509.mail.yahoo.com; Mon, 14 Aug 2000 18:11:34 PDT Date: Mon, 14 Aug 2000 18:11:34 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] Political Speech To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --- Sphere wrote: > DeCSS is in fact political speech. (I have > a stronger opinion, but political meets > my needs.) How is this to be quantified > in legal terms? > > Is: http://www.nylug.org/7_17_00_page.html > good enough? The T-shirt *might* have a motivation that could be deemed "political". I doubt that you could extend this to the computer program itself. Of course, even if you posit that it is political speech, you still have to finish the argument to avoid sharing the losers indignity with the draft card burners in the O'Brian case. Oh, and don't wear your shirt within 8 feet of someone entering a health care facility in Colorado. I'm surprised that Kaplan didn't mention Hill v. Colorado, since he is obviously looking for a way to say DeCSS is speech, but ban it any way. http://supct.law.cornell.edu/supct/html/98-1856.ZO.html __________________________________________________ Do You Yahoo!? Yahoo! Mail – Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 14 21:26:09 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA06764 for dvd-discuss-outgoing; Mon, 14 Aug 2000 21:26:09 -0400 Received: from hotmail.com (f284.law9.hotmail.com [64.4.8.159]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id VAA06761 for ; Mon, 14 Aug 2000 21:26:08 -0400 Received: from mail pickup service by hotmail.com with Microsoft SMTPSVC; Mon, 14 Aug 2000 18:25:26 -0700 Received: from 38.30.239.84 by lw9fd.law9.hotmail.msn.com with HTTP; Tue, 15 Aug 2000 GMT X-Originating-IP: [38.30.239.84] From: "Harold Eaton" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Authorized devices? Date: Mon, 14 Aug 2000 21:25:26 EDT Mime-Version: 1.0 Content-Type: text/plain; format=flowed Message-ID: X-OriginalArrivalTime: 15 Aug 2000 01:25:26.0300 (UTC) FILETIME=[B0B5CDC0:01C00657] Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu mickeym wrote: >In one of the depositions, they also claimed that their player reject a >recorded copy, based on a physical difference between pressed disks and >recordable disks. Yes, and DeCSS will *also* "reject" (deny access) to such disks! ________________________________________________________________________ Get Your Private, Free E-mail from MSN Hotmail at http://www.hotmail.com From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 14 21:31:56 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA06893 for dvd-discuss-outgoing; Mon, 14 Aug 2000 21:31:56 -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 VAA06890 for ; Mon, 14 Aug 2000 21:31:54 -0400 Message-ID: <20000815013112.16645.qmail@web512.mail.yahoo.com> Received: from [64.81.25.37] by web512.mail.yahoo.com; Mon, 14 Aug 2000 18:31:12 PDT Date: Mon, 14 Aug 2000 18:31:12 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] One more time, with 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 --- Sphere wrote: > Could you expand a sentence or two on each of these > cases? Wickard v. Filburn (1941) upheld, at the height of the Great Depression and New Deal, an agricultural regulation that Filburn violated by using homegrown wheat to feed his livestock. http://caselaw.findlaw.com/scripts/getcase.pl?court=us&vol=317&invol=111 US v. Lopez (1995) stuck down the Federal "Gun Free School Zones Act" which Lopez violated by bringing a firearm to his high school. http://caselaw.findlaw.com/scripts/getcase.pl?court=us&vol=000&invol=U10287 US v. Morrison (2000) struck down the "Violence Against Women Act". Jones v. US (2000) struck down the application of a Federal arson law to owner occupied residene on the grounds that such a building is not "used in" commerce. Both are discussed here: http://eon.law.harvard.edu/archive/dvd-discuss/msg03215.html __________________________________________________ Do You Yahoo!? Yahoo! Mail – Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 14 21:55:19 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA06964 for dvd-discuss-outgoing; Mon, 14 Aug 2000 21:55:19 -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 VAA06961 for ; Mon, 14 Aug 2000 21:55:18 -0400 Received: from mediaone.net (h0060b03c5b8b.ne.mediaone.net [24.128.18.77]) by chmls06.mediaone.net (8.8.7/8.8.7) with ESMTP id VAA13064 for ; Mon, 14 Aug 2000 21:55:04 -0400 (EDT) Message-ID: <3998A2F9.6282AB8E@mediaone.net> Date: Mon, 14 Aug 2000 21:55:05 -0400 From: Sphere X-Mailer: Mozilla 4.73 [en] (WinNT; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] One more time, with authority References: <20000815013112.16645.qmail@web512.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: > > --- Sphere wrote: > > Could you expand a sentence or two on each of these > > cases? > > Wickard v. Filburn (1941) upheld, at the height of the Great Depression > and New Deal, an agricultural regulation that Filburn violated by using > homegrown wheat to feed his livestock. > http://caselaw.findlaw.com/scripts/getcase.pl?court=us&vol=317&invol=111 > > US v. Lopez (1995) stuck down the Federal "Gun Free School Zones Act" > which Lopez violated by bringing a firearm to his high school. > http://caselaw.findlaw.com/scripts/getcase.pl?court=us&vol=000&invol=U10287 > > US v. Morrison (2000) struck down the "Violence Against Women Act". > Jones v. US (2000) struck down the application of a Federal arson law > to owner occupied residene on the grounds that such a building is not > "used in" commerce. Both are discussed here: > http://eon.law.harvard.edu/archive/dvd-discuss/msg03215.html > US v. Lopez by itself doesn't seem to be enough, but the brief on the other two would lead me to believe there might be sufficient mechanism here to accomplish what I want. Thanks. I didn't persue the details of the other two cases. Should I have? It seems to me that that act of reading DeCSS does not come under congressional power under the commerce clause, and given that I cannot read if it isn't available... I'm still groping, but the reality is that DeCSS is at least political speech. In fact, it is speech which might prove to be the sparking point for violent revolution if suppressed, and I'd rather not see violence no matter how much I can understand the viewpoint of those supressed. (Some of the people who would feel supressed are exactly the people most able to cause disruption of Internet commerce.) How does this political nature of DeCSS get turned into legal terminology? -- Sphere. No permanence. No self. No perfection. From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 14 22:47:06 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA07832 for dvd-discuss-outgoing; Mon, 14 Aug 2000 22:47:06 -0400 Received: from smtp02.primenet.com (smtp02.primenet.com [206.165.6.132]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id WAA07816 for ; Mon, 14 Aug 2000 22:47:04 -0400 Received: (from daemon@localhost) by smtp02.primenet.com (8.9.3/8.9.3) id TAA05494 for ; Mon, 14 Aug 2000 19:44:55 -0700 (MST) Received: from sessions.phx.primenet.com(206.132.239.114), claiming to be "heorot.lumbercartel.com" via SMTP by smtp02.primenet.com, id smtpdAAAh0a4Sk; Mon Aug 14 19:44:51 2000 Received: from frankenstein.lumbercartel.com (IDENT:dcs@frankenstein.lumbercartel.com [192.168.6.2]) by heorot.lumbercartel.com (8.9.3/8.8.7) with SMTP id TAA15024 for ; Mon, 14 Aug 2000 19:46:14 -0700 From: "D. C. Sessions" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] One more time, with authority Date: Mon, 14 Aug 2000 19:43:26 -0700 X-Mailer: KMail [version 1.0.29] Content-Type: text/plain References: <00081211044000.11176@frankenstein.lumbercartel.com> <00081314571500.07416@frankenstein.lumbercartel.com> <8n7igl$5ce$1@blowfish.isaac.cs.berkeley.edu> In-Reply-To: <8n7igl$5ce$1@blowfish.isaac.cs.berkeley.edu> MIME-Version: 1.0 Message-Id: <00081419461400.09258@frankenstein.lumbercartel.com> Content-Transfer-Encoding: 8bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sun, 13 Aug 2000, you wrote: > D. C. Sessions wrote: > > Secondly, we still haven't nailed down 'circumvention' -- which was the entire > > point of my example. The reason for my example of the indie producer was that > > _in_that_instance_, I read the CCA model as concluding that 'circumvention' > > has occured even though the producer is the one playing the DVD. > > Have the MPAA or the DVD-CCA or the other plaintiffs truly claimed this? > I suspect they might argue that they have not committed themselves to > any such position. Nope. Which is why DA positions exploring their possible strategies are necessary: to explore the flaws in each of them so as to miss any bets. > All I've seen from the plaintiffs' lawyers is vague generalities (which, > incidentally, left me disappointed -- I was hoping for a bit more insight > into their view of the authority structure). They'd be crazy to commit to an authority model as long as the Court accepts their conclusions of law without being pinned down. > I haven't seen anything decisive one way or the other from them > specifically regarding this particular example. As far as I can tell, > they might or might not agree with you, and it's hard to tell which. > But, if you have any citations or specific quotes in mind, I would > definitely be interested to be proven wrong. Let's just imagine for the moment that they decide to take this one, and work up some antiaircraft. -- | Microsoft: "A reputation for releasing inferior software will make | | it more difficult for a software vendor to induce customers to pay | | for new products or new versions of existing products." | +----------- D. C. & M. V. Sessions ----------+ From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 14 22:49:16 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA08017 for dvd-discuss-outgoing; Mon, 14 Aug 2000 22:49:16 -0400 Received: from smtp05.primenet.com (smtp05.primenet.com [206.165.6.135]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id WAA08014 for ; Mon, 14 Aug 2000 22:49:15 -0400 Received: (from daemon@localhost) by smtp05.primenet.com (8.9.3/8.9.3) id TAA11021 for ; Mon, 14 Aug 2000 19:49:03 -0700 (MST) Received: from sessions.phx.primenet.com(206.132.239.114), claiming to be "heorot.lumbercartel.com" via SMTP by smtp05.primenet.com, id smtpdAAAQiaOFv; Mon Aug 14 19:48:58 2000 Received: from frankenstein.lumbercartel.com (IDENT:dcs@frankenstein.lumbercartel.com [192.168.6.2]) by heorot.lumbercartel.com (8.9.3/8.8.7) with SMTP id TAA15102 for ; Mon, 14 Aug 2000 19:48:51 -0700 From: "D. C. Sessions" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Authorized devices, again. Date: Mon, 14 Aug 2000 19:47:09 -0700 X-Mailer: KMail [version 1.0.29] Content-Type: text/plain References: In-Reply-To: MIME-Version: 1.0 Message-Id: <00081419485101.09258@frankenstein.lumbercartel.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, 14 Aug 2000, you wrote: > At this point, no one playing DA answered a > simple question: what *is* an authorized device. > > I grant you that a brand new Sony player, > sealed with Sony seal, is authorized. Now I'm > starting to perform modifications to it. At > which point the device ceases to be authorized? > Since there's an infinitude of possible > modifications, and copyright holders cannot > possibly specify in advance which are OK > and which are not, one possibility remains: > only unmodified devices are authorized. > But I thought I *own* the player! Don't my > ownership rights override their authorization > policy? Of course. You may modify it as you see fit, so long as you comply with all applicabe laws. You will, however, by your modifications, make it something other than the authorized player and thus no longer authorized. Your choice. -- | Microsoft: "A reputation for releasing inferior software will make | | it more difficult for a software vendor to induce customers to pay | | for new products or new versions of existing products." | +----------- D. C. & M. V. Sessions ----------+ From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 14 22:56:19 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA08288 for dvd-discuss-outgoing; Mon, 14 Aug 2000 22:56:19 -0400 Received: from smtp01.primenet.com (smtp01.primenet.com [206.165.6.131]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id WAA08285 for ; Mon, 14 Aug 2000 22:56:18 -0400 Received: (from daemon@localhost) by smtp01.primenet.com (8.9.3/8.9.3) id TAA06637 for ; Mon, 14 Aug 2000 19:55:39 -0700 (MST) Received: from sessions.phx.primenet.com(206.132.239.114), claiming to be "heorot.lumbercartel.com" via SMTP by smtp01.primenet.com, id smtpdAAAMLaa2m; Mon Aug 14 19:55:29 2000 Received: from frankenstein.lumbercartel.com (IDENT:dcs@frankenstein.lumbercartel.com [192.168.6.2]) by heorot.lumbercartel.com (8.9.3/8.8.7) with SMTP id TAA15113 for ; Mon, 14 Aug 2000 19:55:53 -0700 From: "D. C. Sessions" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] One more time, with authority Date: Mon, 14 Aug 2000 19:53:33 -0700 X-Mailer: KMail [version 1.0.29] Content-Type: text/plain References: <399814B2.78A1B671@uic.edu> In-Reply-To: <399814B2.78A1B671@uic.edu> MIME-Version: 1.0 Message-Id: <00081419555302.09258@frankenstein.lumbercartel.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, 14 Aug 2000, you wrote: > I still think that the public domain argument should have been made. > CSS encrypts not only copyrighted works, but also public domain works. > Right now. What about those? Does the public lose their right to > access public domain works on DVD just because there also happen > to be copyrighted works distributed in the same format? Pretty much by definition public-domain uses aren't commercially important. So any 'infringing' use dominates, and the device is illegal. -- | Microsoft: "A reputation for releasing inferior software will make | | it more difficult for a software vendor to induce customers to pay | | for new products or new versions of existing products." | +----------- D. C. & M. V. Sessions ----------+ From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 14 23:03:35 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA08726 for dvd-discuss-outgoing; Mon, 14 Aug 2000 23:03:35 -0400 Received: from smtp04.primenet.com (smtp04.primenet.com [206.165.6.134]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id XAA08723 for ; Mon, 14 Aug 2000 23:03:34 -0400 Received: (from daemon@localhost) by smtp04.primenet.com (8.9.3/8.9.3) id UAA19250 for ; Mon, 14 Aug 2000 20:01:41 -0700 (MST) Received: from sessions.phx.primenet.com(206.132.239.114), claiming to be "heorot.lumbercartel.com" via SMTP by smtp04.primenet.com, id smtpdAAAFYaazL; Mon Aug 14 20:01:30 2000 Received: from frankenstein.lumbercartel.com (IDENT:dcs@frankenstein.lumbercartel.com [192.168.6.2]) by heorot.lumbercartel.com (8.9.3/8.8.7) with SMTP id UAA15134 for ; Mon, 14 Aug 2000 20:03:07 -0700 From: "D. C. Sessions" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Encrypting books Date: Mon, 14 Aug 2000 20:00:31 -0700 X-Mailer: KMail [version 1.0.29] Content-Type: text/plain References: <399814B2.78A1B671@uic.edu> <20000814153100.B30680@eldritchpress.org> <20000814212941.A27546@inka.de> In-Reply-To: <20000814212941.A27546@inka.de> MIME-Version: 1.0 Message-Id: <00081420030703.09258@frankenstein.lumbercartel.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, 14 Aug 2000, you wrote: > On Mon, Aug 14, 2000 at 03:31:00PM -0400, Eric Eldred wrote: > > On Mon, Aug 14, 2000 at 10:48:02AM -0500, John Schulien wrote: > > >... > > > I still think that the public domain argument should have been made. > > > CSS encrypts not only copyrighted works, but also public domain works. > > > Right now. What about those? Does the public lose their right to > > > access public domain works on DVD just because there also happen > > > to be copyrighted works distributed in the same format? > > > > Barnes and Noble at http://ebooks.barnesandnoble.com > > is releasing a bunch of books for free in the new > > Microsoft Reader encrypted format. I have to assume > > that even those these books were originally in the > > public domain that it is a violation of the DMCA to > > "circumvent" the encryption and make them available > > in another format. > > IIRC the DMCA says "effectively controls access to a *copyrighted* work" > (emphasis mine). Surely if the work is public domain it doens't apply? Exactly. So it doesn't weigh into the "limited commercially significant purpose" equation. Infinite non-commercial uses don't outweigh one commercial circumvention. -- | Microsoft: "A reputation for releasing inferior software will make | | it more difficult for a software vendor to induce customers to pay | | for new products or new versions of existing products." | +----------- D. C. & M. V. Sessions ----------+ From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 14 23:26:10 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA09683 for dvd-discuss-outgoing; Mon, 14 Aug 2000 23:26:10 -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 XAA09680 for ; Mon, 14 Aug 2000 23:26:09 -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 UAA22716 for ; Mon, 14 Aug 2000 20:25:43 -0700 Received: (from daw@localhost) by blowfish.isaac.cs.berkeley.edu (8.8.7/8.8.7) id TAA06982; Mon, 14 Aug 2000 19:34:31 -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] One more time, with authority Date: 14 Aug 2000 19:34:16 -0700 Organization: A poorly-installed InterNetNews site Lines: 13 Distribution: isaac Message-ID: <8naa78$6q5$1@blowfish.isaac.cs.berkeley.edu> References: <399814B2.78A1B671@uic.edu> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu John Schulien wrote: > I still think that the public domain argument should have been made. > CSS encrypts not only copyrighted works, but also public domain works. > Right now. What about those? Does the public lose their right to > access public domain works on DVD just because there also happen > to be copyrighted works distributed in the same format? Again, Goldstein is not being sued for an act of circumvention. Rather, he is being sued for trafficking of a circumvention device. There is nothing in 1201(a) to say that the mere existence of a few public-domain works that have been encrypted with CSS will immunize him against a finding that DeCSS is a circumvention device under 1201(a). Maybe such a provision ought to be in the law, but that's a different topic. From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 14 23:28:14 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA09793 for dvd-discuss-outgoing; Mon, 14 Aug 2000 23:28:14 -0400 Received: from smtp02.primenet.com (smtp02.primenet.com [206.165.6.132]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id XAA09790 for ; Mon, 14 Aug 2000 23:28:13 -0400 Received: (from daemon@localhost) by smtp02.primenet.com (8.9.3/8.9.3) id UAA17096 for ; Mon, 14 Aug 2000 20:26:05 -0700 (MST) Received: from sessions.phx.primenet.com(206.132.239.114), claiming to be "heorot.lumbercartel.com" via SMTP by smtp02.primenet.com, id smtpdAAA_KaGrH; Mon Aug 14 20:25:55 2000 Received: from frankenstein.lumbercartel.com (IDENT:dcs@frankenstein.lumbercartel.com [192.168.6.2]) by heorot.lumbercartel.com (8.9.3/8.8.7) with SMTP id UAA15237 for ; Mon, 14 Aug 2000 20:27:17 -0700 From: "D. C. Sessions" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Authorized devices? Date: Mon, 14 Aug 2000 20:15:48 -0700 X-Mailer: KMail [version 1.0.29] Content-Type: text/plain References: <00081319220200.07716@frankenstein.lumbercartel.com> <20000814192728.A31123@ramtop.demon.co.uk> In-Reply-To: <20000814192728.A31123@ramtop.demon.co.uk> MIME-Version: 1.0 Message-Id: <00081420271700.09283@frankenstein.lumbercartel.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, 14 Aug 2000, you wrote: > On Sun, Aug 13, 2000 at 06:59:12PM -0700, D. C. Sessions wrote: > > On Sun, 13 Aug 2000, you wrote: > > > > I think you need to seperate the technical issues from the legal issues though. > > > Sony might be within their rights to include technical measure to attempt to > > > restrict the players that can be used to play a DVD. However, once they sell a > > > DVD, can they deny the authority to do any or all of the things that fall > > > within the definition of fair use? > > > > [DA] As for technical means, all they need to do is include keys for Sony players > > only. And according to the plaintiffs' position they have the right > > to authorize only those players that they wish to authorize, since the > > "authority of the copyright holder" is a property of the player. (This legal theory > > is so consistent with the design of CSS that one is led to believe that CSS was > > designed specifically to implement it.) > > > This is where the vagueness of the term "authority" in the statute is being used > by the plaintiffs. But surely the DVDCCA grants authority to the player > manufacturer, not to the device itself. "Surely" isn't a very cogent argument. [DA] There is a chain of authority passing from the copyright holder, through its designated agent, the DVDCCA. The DVDCCA's scope is less than that of the holder in that the DVDCCA cannot authorize, for instance, reproduction of 70mm theatre film. Similarly, the DVDCCA authorizes the manufacturer to produce only certain devices and not others; those devices carry the holders' authority to play certain DVDs and not others (e.g. region coding). At each step the scope of authority is narrowed. > And I don't see how it is possible to > claim that the copyright holder is able to demand that only certain > manufacturers devices are permitted to access the work, and yet still claim this > is not interfering with fair use. [DA] Your failure to understand the law reflects on you, not on the law. The playing of the protected content is, per 1201, only legal with the authority of the copyright holder. You don't have it unless you use an approved player. > > [DA] There is nothing to prevent consumers from performing those actions which > > are generally covered by "fair use" except that it so happens that there are no > > legal devices which would enable them to do so. An obstacle of fact, not of law. > > > But if fair use is preserved, the copyright holder cannot deny authority to > decrypt a legally purchased DVD based on the device used to decrypt. So if the > user has authority to decrypt under fair use, how can this be described as > circumvention as defined in (3)(A)? That's right. If there were a legal device you could certainly use it to decrypt. (DoD or Speed Ripper, anyone?) The device, however, is illegal. Your inability to find an appropriate device is a problem of fact, not of law. > > [DA] The DVD CCA has been delegated by the great majority of copyright holders > > (not owners) to authorize devices permitted to play their content. Since any > > unapproved device will be operating without their authority, its primary use (and > > presumptively intent) will be accessing content without authorization, i.e. > > circumvention. Therefore an illegal device. > > > But the authority granted to the player manufacturers when they pay their > licensing fee to the DVDCCA is seperate to the authority granted by the > copyright holder to the consumer when they purchase their DVD disk. The > plaintiff's argument seems to rely on treating these as the same thing. The plaintiffs' argument does no such thing. The authority to play resides in the license of the player. They have made no claim whatever WRT the disk. > > [dcs] I suppose that you could argue that the plaintiffs have taken the position that > > since the authority resides with the player, they have authorized anyone with an > > approved player to access any and all DVDs that might come into their posession, > > counterfeit or not. Wouldn't it be a hoot if the Court found in their favor against > > DeCSS on *that* ground? > > > If that was the interpretation, couldn't it be argued that the DoD ripper > doesn't circumvent since it is the authorised player that does the decryption? So where is the DVDCCA filing on the DoD case, hmmm? -- | Microsoft: "A reputation for releasing inferior software will make | | it more difficult for a software vendor to induce customers to pay | | for new products or new versions of existing products." | +----------- D. C. & M. V. Sessions ----------+ From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 15 01:59:03 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id BAA12297 for dvd-discuss-outgoing; Tue, 15 Aug 2000 01:59:03 -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 BAA12294 for ; Tue, 15 Aug 2000 01:58:59 -0400 Received: (from phil@localhost) by ramtop.demon.co.uk (8.9.3/8.9.3) id GAA02702 for dvd-discuss@eon.law.harvard.edu; Tue, 15 Aug 2000 06:57:45 +0100 Date: Tue, 15 Aug 2000 06:57:44 +0100 From: Phil Harrison To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Authorized devices? Message-ID: <20000815065744.A2657@ramtop.demon.co.uk> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <00081319220200.07716@frankenstein.lumbercartel.com> <20000814192728.A31123@ramtop.demon.co.uk> <00081420271700.09283@frankenstein.lumbercartel.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii Content-Disposition: inline User-Agent: Mutt/1.2.5i In-Reply-To: <00081420271700.09283@frankenstein.lumbercartel.com>; from dcs@mailhost.lumbercartel.com on Mon, Aug 14, 2000 at 08:15:48PM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Mon, Aug 14, 2000 at 08:15:48PM -0700, D. C. Sessions wrote: > On Mon, 14 Aug 2000, you wrote: > > > > > This is where the vagueness of the term "authority" in the statute is being used > > by the plaintiffs. But surely the DVDCCA grants authority to the player > > manufacturer, not to the device itself. > > "Surely" isn't a very cogent argument. > [DA] There is a chain of authority passing from the copyright holder, through > its designated agent, the DVDCCA. The DVDCCA's scope is less than that > of the holder in that the DVDCCA cannot authorize, for instance, reproduction > of 70mm theatre film. Similarly, the DVDCCA authorizes the manufacturer to > produce only certain devices and not others; those devices carry the holders' > authority to play certain DVDs and not others (e.g. region coding). At each > step the scope of authority is narrowed. > OK, but none of that has anything to do with the authority granted to the purchaser when they buy their DVD disk. > > And I don't see how it is possible to > > claim that the copyright holder is able to demand that only certain > > manufacturers devices are permitted to access the work, and yet still claim this > > is not interfering with fair use. > > [DA] Your failure to understand the law reflects on you, not on the law. Probably. That's why I am not claiming to be a lawyer. > The playing > of the protected content is, per 1201, only legal with the authority of the copyright > holder. You don't have it unless you use an approved player. > You still didn't answer my question though. How can they deny authority to play a disk based on the player used, without affecting fair use? > > > > > But if fair use is preserved, the copyright holder cannot deny authority to > > decrypt a legally purchased DVD based on the device used to decrypt. So if the > > user has authority to decrypt under fair use, how can this be described as > > circumvention as defined in (3)(A)? > > That's right. If there were a legal device you could certainly use it to decrypt. > (DoD or Speed Ripper, anyone?) The device, however, is illegal. Your > inability to find an appropriate device is a problem of fact, not of law. > But doesn't the definition of the word "circumvent" in the statute means that if I am allowed to use the device, it isn't circumventing? > > But the authority granted to the player manufacturers when they pay their > > licensing fee to the DVDCCA is seperate to the authority granted by the > > copyright holder to the consumer when they purchase their DVD disk. The > > plaintiff's argument seems to rely on treating these as the same thing. > > The plaintiffs' argument does no such thing. The authority to play resides in > the license of the player. They have made no claim whatever WRT the disk. > The definition of "circumvention" refers to the authority to access the copyright work. If fair use is not to be affected, this must be the authority granted at the time the consumer purchases the disk regardless of what players they may or may not own. > > > [dcs] I suppose that you could argue that the plaintiffs have taken the position that > > > since the authority resides with the player, they have authorized anyone with an > > > approved player to access any and all DVDs that might come into their posession, > > > counterfeit or not. Wouldn't it be a hoot if the Court found in their favor against > > > DeCSS on *that* ground? > > > > > If that was the interpretation, couldn't it be argued that the DoD ripper > > doesn't circumvent since it is the authorised player that does the decryption? > > So where is the DVDCCA filing on the DoD case, hmmm? > :-) -- Phil Harrison From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 15 02:45:02 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id CAA12594 for dvd-discuss-outgoing; Tue, 15 Aug 2000 02:45:02 -0400 Received: from dial181.roadrunner.com (dial181.cybermesa.com [209.12.75.181] (may be forged)) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id CAA12591 for ; Tue, 15 Aug 2000 02:44:59 -0400 Received: (from paul@localhost) by dial181.roadrunner.com (8.8.7/8.8.7) id AAA02951 for dvd-discuss@eon.law.harvard.edu; Tue, 15 Aug 2000 00:46:06 -0600 Date: Tue, 15 Aug 2000 00:46:05 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Does DeCSS circumvent? (was Let's not miss another deadline!) Message-ID: <20000815004604.A487@localhost> References: <20000730212340.29743.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: <20000730212340.29743.qmail@web513.mail.yahoo.com>; from bryan_w_taylor@yahoo.com on Sun, Jul 30, 2000 at 02:23:40PM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Sigh, I'm hopelessly behind again ... On Sun, Jul 30, 2000 at 02:23:40PM -0700, Bryan Taylor wrote: > > --- "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. I take a different view of this. Prior to the enactment of 1201(a), *it was legal to privately watch a stolen movie*. Private viewing is not listed as an exclusive right, so while stealing the _copy_ was and is illegal, viewing the _work_ was not. The DMCA is a fundamental shift away from that situation: Private "ordinary" use of a work is now regulated, at least in some circumstances. I think this point may be important because it isn't clear to me that private viewing and reading were "transferred" rights, at least once publication occured. The nature of first-sale could be changing quite significantly as a result of 1201(a). One might argue for "transfer" of the right to read et al. after the DMCA. Paul Fenimore > > 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. From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 15 08:55:55 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id IAA13824 for dvd-discuss-outgoing; Tue, 15 Aug 2000 08:55:55 -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 IAA13821 for ; Tue, 15 Aug 2000 08:55:54 -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 IAA14056 for ; Tue, 15 Aug 2000 08:55:43 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id IAA24135; Tue, 15 Aug 2000 08:55:42 -0400 (EDT) Date: Tue, 15 Aug 2000 08:55:42 -0400 (EDT) Message-Id: <200008151255.IAA24135@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: <20000815004604.A487@localhost> References: <20000730212340.29743.qmail@web513.mail.yahoo.com> <20000815004604.A487@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 point may be important because it isn't clear to me that > private viewing and reading were "transferred" rights, at least once > publication occured. The nature of first-sale could be changing quite > significantly as a result of 1201(a). One might argue for "transfer" > of the right to read et al. after the DMCA. Private viewing certainly was a transferred right --- see 17 USC 109(c), which reads in full: 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. And it certainly looks to me like 1201(c)(1) says that that wasn't supposed to change. Note that "authority of the copyright owner" here clearly means a grant of authority from the copyright owner *to view a particular work*. As I've argued many times before, a lot of the problems with 1201 go away if you read the phrase the same way there. rst From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 15 10:48:19 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA15671 for dvd-discuss-outgoing; Tue, 15 Aug 2000 10:48:19 -0400 Received: from mail2.panix.com (mail2.panix.com [166.84.0.213]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id KAA15668 for ; Tue, 15 Aug 2000 10:48:18 -0400 Received: from panix.com (www1.panix.com [166.84.0.209]) by mail2.panix.com (Postfix) with SMTP id D92A48FDB; Tue, 15 Aug 2000 10:48:06 -0400 (EDT) From: "Roy Murphy" To: "D. C. Sessions" , dvd-discuss@eon.law.harvard.edu Date: Tue, 15 Aug 2000 10:48:06 -0400 Subject: Re: [dvd-discuss] Encrypting books X-Mailer: DMailWeb Web to Mail Gateway 2.6k, http://netwinsite.com/top_mail.htm Message-id: <39995826.653b.0@panix.com> MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Yea, verily, thus spake D. C. Sessions: >On Mon, 14 Aug 2000, you wrote: >> IIRC the DMCA says "effectively controls access to a *copyrighted* >> work" (emphasis mine). Surely if the work is public domain it >> doens't apply? > >Exactly. So it doesn't weigh into the "limited commercially >significant purpose" equation. Infinite non-commercial uses don't >outweigh one commercial circumvention. Public Domain != non-commercial. Lots of people sell copies of PD works. PD just means not copyrighted. It means anyone can exploit the work. From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 15 11:49:39 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA17109 for dvd-discuss-outgoing; Tue, 15 Aug 2000 11:49:39 -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 LAA17106 for ; Tue, 15 Aug 2000 11:49:38 -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 KAA27137 for ; Tue, 15 Aug 2000 10:49:27 -0500 (CDT) Message-ID: <399966A2.2458621@uic.edu> Date: Tue, 15 Aug 2000 10:49:54 -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] One more time, with 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 > Pretty much by definition public-domain uses aren't > commercially important. So any 'infringing' > use dominates, and the device is illegal. This doesn't follow at all. There are many commercially important uses for public domain materials. Any commercial use of the images of Santa Claus, Uncle Sam ... anyone writing a history book will rely on public domain sources. There are many businesses (stock footage houses), for instance, that sell copies of public domain footage. Or is there some legal precedent I'm unaware of? From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 15 13:49:28 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA18179 for dvd-discuss-outgoing; Tue, 15 Aug 2000 13:49:28 -0400 Received: from mail1.panix.com (mail1.panix.com [166.84.0.212]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id NAA18176 for ; Tue, 15 Aug 2000 13:49:26 -0400 Received: from panix.com (www2.panix.com [166.84.0.221]) by mail1.panix.com (Postfix) with SMTP id 5B55830EEF; Tue, 15 Aug 2000 13:49:15 -0400 (EDT) From: "Roy Murphy" To: Paul Fenimore , dvd-discuss@eon.law.harvard.edu Date: Tue, 15 Aug 2000 13:49:15 -0400 Subject: Re: [dvd-discuss] Does DeCSS circumvent? (was Let's not miss another deadline!) X-Mailer: DMailWeb Web to Mail Gateway 2.6k, http://netwinsite.com/top_mail.htm Message-id: <3999829b.991.0@panix.com> MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Yea, verily, thus spake Paul Fenimore: >I think this point may be important because it isn't clear to me that >private viewing and reading were "transferred" rights, at least once >publication occured. The nature of first-sale could be changing quite >significantly as a result of 1201(a). One might argue for "transfer" >of the right to read et al. after the DMCA. Section 1201 explicitly denies that any change to "rights, ... or defenses to copyright infringement" is intended. The first-sale doctrine confers rights to a purchaser of a copyrighted work. Section 1201 (c) Other Rights, Etc., Not Affected. - (1) Nothing in this section shall affect rights, remedies, limitations, or defenses to copyright infringement, including fair use, under this title. (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. (3) Nothing in this section shall require 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 measure, so long as such part or component, or the product in which such part or component is integrated, does not otherwise fall within the prohibitions of subsection (a)(2) or (b)(1). (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. From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 15 15:34:45 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA19842 for dvd-discuss-outgoing; Tue, 15 Aug 2000 15:34:45 -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 PAA19839 for ; Tue, 15 Aug 2000 15:34:42 -0400 Received: (from paul@localhost) by dial208.roadrunner.com (8.8.7/8.8.7) id NAA00916 for dvd-discuss@eon.law.harvard.edu; Tue, 15 Aug 2000 13:35:48 -0600 Date: Tue, 15 Aug 2000 13:35:47 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Does DeCSS circumvent? (was Let's not miss another deadline!) Message-ID: <20000815133546.A821@localhost> References: <20000730212340.29743.qmail@web513.mail.yahoo.com> <20000815004604.A487@localhost> <200008151255.IAA24135@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: <200008151255.IAA24135@soggy-fibers.ai.mit.edu>; from rst@ai.mit.edu on Tue, Aug 15, 2000 at 08:55:42AM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, Aug 15, 2000 at 08:55:42AM -0400, Robert S. Thau wrote: > Paul Fenimore writes: > > > I think this point may be important because it isn't clear to me that > > private viewing and reading were "transferred" rights, at least once > > publication occurred. The nature of first-sale could be changing quite > > significantly as a result of 1201(a). One might argue for "transfer" > > of the right to read et al. after the DMCA. > > Private viewing certainly was a transferred right --- see 17 USC > 109(c), which reads in full: > > 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. > > And it certainly looks to me like 1201(c)(1) says that that wasn't > supposed to change. > > Note that "authority of the copyright owner" here > clearly means a grant of authority from the copyright owner *to view a > particular work*. As I've argued many times before, a lot of the > problems with 1201 go away if you read the phrase the same way > there. I agree that public viewing was and is transferred, but I still maintain private was not transferred until 1201(a) granted special status to access control devices. Those devices don't know the difference between public and private viewing. This is unlike the statute which simply didn't mention private viewing --- this misfit between what the technological measure cannot distinguish (public/private) and what the statute can distinguish (public/private) seems to be at the root of the change in first sale. First sale now has private viewing attached to it implicitly by the scope of the technological measures covered by 1201(a). I'm contenting that is a de facto change. I agree that most of the problems can be made to go away. Whether or not attaching private viewing to first sale constitutes a problem I'm not sure. But it does seem to me to be a change that might have odd repercussions. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 15 22:09:28 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA26767 for dvd-discuss-outgoing; Tue, 15 Aug 2000 22:09:28 -0400 Received: from mail.airbridge.net ([204.147.60.220]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id WAA26764 for ; Tue, 15 Aug 2000 22:09:26 -0400 Received: from agape.murphy.cx ([166.84.198.139]) by mail.airbridge.net (Netscape Messaging Server 3.6) with ESMTP id AAA7432 for ; Tue, 15 Aug 2000 22:09:46 -0400 Received: (from murphy@localhost) by agape.murphy.cx (8.9.3/8.8.7) id WAA00938 for dvd-discuss@eon.law.harvard.edu; Tue, 15 Aug 2000 22:09:53 -0400 Date: Tue, 15 Aug 2000 22:09:52 -0400 From: Roy Murphy To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] One more time, with authority Message-ID: <20000815220952.A722@agape.murphy.cx> References: <4.2.2.20000814181008.00e58210@pop.bellatlantic.net> <39987056.AB48DBDE@mediaone.net> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0pre3i In-Reply-To: <39987056.AB48DBDE@mediaone.net> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Yea, verily on Mon, Aug 14, 2000 at 06:19:02PM -0400, thus spake Sphere: > Wendy Seltzer wrote: > > The claim that DeCSS is not "in commerce" does not appear to be a > > productive line of argument. [...] > > Lopez and VAWA notwithstanding, affecting commerce still cuts a > > broad swath. > > Broad enough to supress political expression? You're really barking up the wrong tree. "Political expression" is not a magic bullet excusing otherwise illegal activity. People do all kinds of illegal acts in the name of political expression or protest. They tend to end up in jail for 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 Tue Aug 15 22:48:53 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA26928 for dvd-discuss-outgoing; Tue, 15 Aug 2000 22:48:53 -0400 Received: from smtp01.primenet.com (smtp01.primenet.com [206.165.6.131]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id WAA26925 for ; Tue, 15 Aug 2000 22:48:52 -0400 Received: (from daemon@localhost) by smtp01.primenet.com (8.9.3/8.9.3) id TAA20592 for ; Tue, 15 Aug 2000 19:48:14 -0700 (MST) Received: from sessions.phx.primenet.com(206.132.239.114), claiming to be "heorot.lumbercartel.com" via SMTP by smtp01.primenet.com, id smtpdAAAQTaOhO; Tue Aug 15 19:48:04 2000 Received: from frankenstein.lumbercartel.com (IDENT:dcs@frankenstein.lumbercartel.com [192.168.6.2]) by heorot.lumbercartel.com (8.9.3/8.8.7) with SMTP id TAA17826 for ; Tue, 15 Aug 2000 19:47:55 -0700 From: "D. C. Sessions" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Authorized devices? Date: Tue, 15 Aug 2000 19:32:28 -0700 X-Mailer: KMail [version 1.0.29] Content-Type: text/plain References: <00081420271700.09283@frankenstein.lumbercartel.com> <20000815065744.A2657@ramtop.demon.co.uk> In-Reply-To: <20000815065744.A2657@ramtop.demon.co.uk> MIME-Version: 1.0 Message-Id: <00081519475500.10641@frankenstein.lumbercartel.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, 14 Aug 2000, you wrote: > On Mon, Aug 14, 2000 at 08:15:48PM -0700, D. C. Sessions wrote: > > On Mon, 14 Aug 2000, you wrote: > > > > > > > This is where the vagueness of the term "authority" in the statute is being used > > > by the plaintiffs. But surely the DVDCCA grants authority to the player > > > manufacturer, not to the device itself. > > > > "Surely" isn't a very cogent argument. > > [DA] There is a chain of authority passing from the copyright holder, through > > its designated agent, the DVDCCA. The DVDCCA's scope is less than that > > of the holder in that the DVDCCA cannot authorize, for instance, reproduction > > of 70mm theatre film. Similarly, the DVDCCA authorizes the manufacturer to > > produce only certain devices and not others; those devices carry the holders' > > authority to play certain DVDs and not others (e.g. region coding). At each > > step the scope of authority is narrowed. > > > OK, but none of that has anything to do with the authority granted to the > purchaser when they buy their DVD disk. [DA] That's right -- because the purchase of the DVD grants no authority whatsoever. Example: Unix CAE tools (e.g. IC place-and-route software) can cost over $100,000 per seat. And yet it's freely downloadable. The CD or the download confer no rights at all; running the software downloaded that way without a license *is* infringement. What confers the authority of the copyright holder is a license file. Separate transaction. I can buy a license for one seat or for one hundred. Same CD, loaded to the same disk. Different authority. [DA] CSS is the same system. The DVD itself is just an expensive coaster. Legally, it confers absolutely nothing on the purchaser except ownership of a shiny piece of plastic. Purchase of a DVD player made under DVDCCA license, on the other hand, is a required step in the chain transferring authority from the holder, through its agent the DVDCCA, through the player manufacturer, to the consumer. > > > And I don't see how it is possible to > > > claim that the copyright holder is able to demand that only certain > > > manufacturers devices are permitted to access the work, and yet still claim this > > > is not interfering with fair use. > > > > [DA] Your failure to understand the law reflects on you, not on the law. > > Probably. That's why I am not claiming to be a lawyer. > > > The playing > > of the protected content is, per 1201, only legal with the authority of the copyright > > holder. You don't have it unless you use an approved player. > > > You still didn't answer my question though. How can they deny authority to play > a disk based on the player used, without affecting fair use? [DA] Because the player is the key that opens the lock. Sure, you can get into the house in many ways. The door may not even be locked. But posession of the key, transferred to you in unbroken chain from the owner through its representatives, authorizes you to enter the house. > > > But if fair use is preserved, the copyright holder cannot deny authority to > > > decrypt a legally purchased DVD based on the device used to decrypt. So if the > > > user has authority to decrypt under fair use, how can this be described as > > > circumvention as defined in (3)(A)? > > > > That's right. If there were a legal device you could certainly use it to decrypt. > > (DoD or Speed Ripper, anyone?) The device, however, is illegal. Your > > inability to find an appropriate device is a problem of fact, not of law. > > > But doesn't the definition of the word "circumvent" in the statute means that if > I am allowed to use the device, it isn't circumventing? [DA] You are allowed to use any legal device to access the DVD. For instance, your eyes aided by a microscope (which certainly has non-infringing uses) to read the little pits one by one. No problemo. But although the _use_ of an infringing device may be legal, its posession is not because the design, manufacture, and sale of such a device violates 1201. There is no claim of infringment before the Court. Only of matters dealing with devices which infringe. > > > But the authority granted to the player manufacturers when they pay their > > > licensing fee to the DVDCCA is seperate to the authority granted by the > > > copyright holder to the consumer when they purchase their DVD disk. The > > > plaintiff's argument seems to rely on treating these as the same thing. > > > > The plaintiffs' argument does no such thing. The authority to play resides in > > the license of the player. They have made no claim whatever WRT the disk. > > > The definition of "circumvention" refers to the authority to access the > copyright work. If fair use is not to be affected, this must be the authority > granted at the time the consumer purchases the disk regardless of what players > they may or may not own. [DA] Purchase of the disk has nothing to do with it. Purchase of the player does. -- | Microsoft: "A reputation for releasing inferior software will make | | it more difficult for a software vendor to induce customers to pay | | for new products or new versions of existing products." | +----------- D. C. & M. V. Sessions ----------+ From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 15 22:58:42 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA27017 for dvd-discuss-outgoing; Tue, 15 Aug 2000 22:58:42 -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 WAA27014 for ; Tue, 15 Aug 2000 22:58:42 -0400 Received: from mediaone.net (h0060b03c5b8b.ne.mediaone.net [24.128.18.77]) by chmls05.mediaone.net (8.8.7/8.8.7) with ESMTP id WAA15221 for ; Tue, 15 Aug 2000 22:58:32 -0400 (EDT) Message-ID: <399A0358.3468C0C3@mediaone.net> Date: Tue, 15 Aug 2000 22:58:32 -0400 From: Sphere X-Mailer: Mozilla 4.73 [en] (WinNT; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] One more time, with authority References: <4.2.2.20000814181008.00e58210@pop.bellatlantic.net> <39987056.AB48DBDE@mediaone.net> <20000815220952.A722@agape.murphy.cx> Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Roy Murphy wrote: > > Yea, verily on Mon, Aug 14, 2000 at 06:19:02PM -0400, > thus spake Sphere: > > Wendy Seltzer wrote: > > > The claim that DeCSS is not "in commerce" does not appear to be a > > > productive line of argument. [...] > > > Lopez and VAWA notwithstanding, affecting commerce still cuts a > > > broad swath. > > > > Broad enough to supress political expression? > > You're really barking up the wrong tree. "Political expression" is not > a magic bullet excusing otherwise illegal activity. People do all kinds > of illegal acts in the name of political expression or protest. They > tend to end up in jail for it. It isn't doing something in the name of expression. It is expression. > -- > Roy Murphy \ "For a successful technology, reality must take precedence > murphy@panix.com \ over public relations, for Nature cannot be fooled" > \ R.P. Feynman -- Sphere. No permanence. No self. No perfection. From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 15 23:28:39 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA27288 for dvd-discuss-outgoing; Tue, 15 Aug 2000 23:28:39 -0400 Received: from web6401.mail.yahoo.com (web6401.mail.yahoo.com [128.11.22.149]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id XAA27285 for ; Tue, 15 Aug 2000 23:28:39 -0400 Message-ID: <20000816032829.21913.qmail@web6401.mail.yahoo.com> Received: from [24.91.21.179] by web6401.mail.yahoo.com; Tue, 15 Aug 2000 20:28:29 PDT Date: Tue, 15 Aug 2000 20:28:29 -0700 (PDT) From: Pete Broule Subject: Re: [dvd-discuss] One more time, with 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 --- Sphere wrote: > It isn't doing something in the name of > expression. It is expression. And so is terrorism. __________________________________________________ Do You Yahoo!? Yahoo! Mail – Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 16 09:10:20 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA30583 for dvd-discuss-outgoing; Wed, 16 Aug 2000 09:10:20 -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 JAA30580 for ; Wed, 16 Aug 2000 09:10:19 -0400 Received: from mediaone.net (h0060b03c5b8b.ne.mediaone.net [24.128.18.77]) by chmls05.mediaone.net (8.8.7/8.8.7) with ESMTP id JAA23240 for ; Wed, 16 Aug 2000 09:10:11 -0400 (EDT) Message-ID: <399A92B2.703BCE8@mediaone.net> Date: Wed, 16 Aug 2000 09:10:10 -0400 From: Sphere X-Mailer: Mozilla 4.73 [en] (WinNT; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] One more time, with authority References: <20000816032829.21913.qmail@web6401.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 Pete Broule wrote: > > --- Sphere wrote: > > It isn't doing something in the name of > > expression. It is expression. > > And so is terrorism. Strict scrutiny. Even violent words are protected speech if they do not go so far as to immediately provoke violent action. This is why it is legal to publish a description of how to build a bomb. The fact that the materials necessary to build a bomb would most likely be bought in interstate commerce do not exempt the instructions from protection. -- Sphere. No permanence. No self. No perfection. From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 16 09:24:15 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA30722 for dvd-discuss-outgoing; Wed, 16 Aug 2000 09:24:15 -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 JAA30719 for ; Wed, 16 Aug 2000 09:24:14 -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 JAA03427 for ; Wed, 16 Aug 2000 09:24:06 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id JAA05212; Wed, 16 Aug 2000 09:24:05 -0400 (EDT) Date: Wed, 16 Aug 2000 09:24:05 -0400 (EDT) Message-Id: <200008161324.JAA05212@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Authorized devices? In-Reply-To: <00081519475500.10641@frankenstein.lumbercartel.com> References: <00081420271700.09283@frankenstein.lumbercartel.com> <20000815065744.A2657@ramtop.demon.co.uk> <00081519475500.10641@frankenstein.lumbercartel.com> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu D. C. Sessions writes: > Example: Unix CAE tools (e.g. IC place-and-route software) can cost > over $100,000 per seat. And yet it's freely downloadable. The CD > or the download confer no rights at all; running the software > downloaded that way without a license *is* infringement. > > What confers the authority of the copyright holder is a license > file. Separate transaction. I can buy a license for one seat or > for one hundred. Same CD, loaded to the same disk. Different > authority. > > [DA] CSS is the same system. The DVD itself is just an expensive > coaster. Legally, it confers absolutely nothing on the purchaser > except ownership of a shiny piece of plastic. Purchase of a DVD > player made under DVDCCA license, on the other hand, is a required > step in the chain transferring authority from the holder, through > its agent the DVDCCA, through the player manufacturer, to the > consumer. Fine --- we've tried that theory. The problem with it is that some players (e.g., standalone hardware devices available from Best Buy through playback through a TV set) come with no license agreements at all --- they could (Circuit City Divx players did), but they don't. And when we find players that do come with license agreements (PC software DVD players), those license agreements state explicitly that the license grants *no* right to view any content. See for instance the Xing player license (incorporated in full in one of the exhibits to the California trade-secret case), which includes this clause: 7. All video, audio and other content accessed through the Product is the property of the applicable content owner and may be protected by applicable copyright law. This Agreement gives you no rights to such content. There is likewise no license agreement attached to the sale of the DVD itself. So what we have, to every appearance, is a sale of a published work, to which the First Sale doctrine should apply. > [DA] Because the player is the key that opens the lock. Sure, you > can get into the house in many ways. The door may not even be > locked. But posession of the key, transferred to you in unbroken > chain from the owner through its representatives, > authorizes you to enter the house. We've played with this "house" analogy a lot, in part because Nimmer uses it to explain the distinction between access controls (which the law supports) and use controls (which it doesn't) --- on the basis of a line from the Congressional debates which analogized access control to the lock on a room containing a book. Copyright holders, on this analogy, are allowed to determine who may enter the room, but not how they may read the book once they have entered. But CSS doesn't determine who may enter the room --- anyone can go to Best buy, and get a "key" which will "unlock" *any* DVD. Contrast this to Circuit City Divx, or PPV cable, which are technical measures which govern the viewing of a work by a particular individual. That's not what Congress had in mind when they passed the law; one way to see this is that the MPAA's interpretatino of the law would, in effect, overturn Universal v. Sony (the Betamax case), which they were explicitly, unambiguously trying to preserve. The only way to make sense of this is to read the law so that it only regulates technical measures which determine whether a particular individual has been granted access to a particular work by the copyright owner (or a designated agent), and only to the extent that it's illegal to distribute tools which defeat such a check, and allow an unauthorized individual access to a work which the technical measure wouldn't have granted "in the ordinary course of its operation" (quoting the law). > [DA] You are allowed to use any legal device to access the DVD. > For instance, your eyes aided by a microscope (which certainly has > non-infringing uses) to read the little pits one by one. No > problemo. But although the _use_ of an infringing device may be > legal, its posession is not because the design, manufacture, and > sale of such a device violates 1201. > > There is no claim of infringment before the Court. Only of matters > dealing with devices which infringe. No, the court is dealing with a device which allegedly *circumvents an access control* --- an act which isn't illegal now, but will be when 1201 is in effect (later this year, IIRC). > [DA] Purchase of the disk has nothing to do with it. Purchase of > the player does. Then how come the player licenses say otherwise? rst From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 16 10:08:34 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA31693 for dvd-discuss-outgoing; Wed, 16 Aug 2000 10:08:34 -0400 Received: from tbird.iworld.com ([63.236.72.237]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id KAA31690 for ; Wed, 16 Aug 2000 10:08:33 -0400 Received: (from nobody@localhost) by tbird.iworld.com (8.10.2/8.10.2) id e7GE7nc05237; Wed, 16 Aug 2000 10:07:49 -0400 Date: Wed, 16 Aug 2000 10:07:49 -0400 Message-Id: <200008161407.e7GE7nc05237@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] Authorized devices? Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Robert S. Thau wrote: >D. C. Sessions writes: > > Example: Unix CAE tools (e.g. IC place-and-route software) can cost > > over $100,000 per seat. And yet it's freely downloadable. The CD > > or the download confer no rights at all; running the software > > downloaded that way without a license *is* infringement. > > > > What confers the authority of the copyright holder is a license > > file. Separate transaction. I can buy a license for one seat or > > for one hundred. Same CD, loaded to the same disk. Different > > authority. > > > > [DA] CSS is the same system. The DVD itself is just an expensive > > coaster. Legally, it confers absolutely nothing on the purchaser > > except ownership of a shiny piece of plastic. Purchase of a DVD > > player made under DVDCCA license, on the other hand, is a required > > step in the chain transferring authority from the holder, through > > its agent the DVDCCA, through the player manufacturer, to the > > consumer. If that's the case why am I paying for the DVD? >Fine --- we've tried that theory. The problem with it is that some >players (e.g., standalone hardware devices available from Best Buy >through playback through a TV set) come with no license agreements at >all --- they could (Circuit City Divx players did), but they don't. > >And when we find players that do come with license agreements (PC >software DVD players), those license agreements state explicitly that >the license grants *no* right to view any content. See for instance >the Xing player license (incorporated in full in one of the exhibits >to the California trade-secret case), which includes this clause: > > 7. All video, audio and other content accessed through the > Product is the property of the applicable content owner and may > be protected by applicable copyright law. This Agreement > gives you no rights to such content. > >There is likewise no license agreement attached to the sale of the DVD >itself. So what we have, to every appearance, is a sale of a >published work, to which the First Sale doctrine should apply. I suppose that's a matter of fact not law, too? (yes, that line of argument is nauseating. It violently attacks reason in my book.) > > [DA] Because the player is the key that opens the lock. Sure, you > > can get into the house in many ways. The door may not even be > > locked. But posession of the key, transferred to you in unbroken > > chain from the owner through its representatives, > > authorizes you to enter the house. If I steal a key it's okay for me to enter the house? Or does the title (hint hint) or liens or whatever legally recognized piece of papper has the sentence Rares Marian owns this house (sorry I'm not an expert in the terminology) to the house give me authority to enter? Because THAT is EXACTLY where this line of argument leads regarding DVDs. This has been rehashed over and over. Thank you Mr. DA for clarifying our point for us. > > [DA] You are allowed to use any legal device to access the DVD. > > For instance, your eyes aided by a microscope (which certainly has > > non-infringing uses) to read the little pits one by one. No > > problemo. But although the _use_ of an infringing device may be > > legal, its posession is not because the design, manufacture, and > > sale of such a device violates 1201. > > > > There is no claim of infringment before the Court. Only of matters > > dealing with devices which infringe. OT: so stop telling Sony, actors, producers, media, and the public that it's about infringement. >No, the court is dealing with a device which allegedly *circumvents an >access control* --- an act which isn't illegal now, but will be when >1201 is in effect (later this year, IIRC). > > [DA] Purchase of the disk has nothing to do with it. Purchase of > > the player does. I'm going to count to 1000. Count with me. >Then how come the player licenses say otherwise? Because nobody wants to be held responsible, nor do they want you to know that the licensing allow you to view stolen discs. It's a smokescreen. It's designed to keep people arguing while they pull the strings. >rst 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 Wed Aug 16 11:51:15 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA00779 for dvd-discuss-outgoing; Wed, 16 Aug 2000 11:51:15 -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 ESMTP id LAA00775 for ; Wed, 16 Aug 2000 11:51:13 -0400 Received: from mail pickup service by hotmail.com with Microsoft SMTPSVC; Wed, 16 Aug 2000 08:50:34 -0700 Received: from 128.244.34.133 by lw9fd.law9.hotmail.msn.com with HTTP; Wed, 16 Aug 2000 GMT X-Originating-IP: [128.244.34.133] From: "Harold Eaton" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Authorized devices? Date: Wed, 16 Aug 2000 11:50:34 EDT Mime-Version: 1.0 Content-Type: text/plain; format=flowed Message-ID: X-OriginalArrivalTime: 16 Aug 2000 15:50:34.0381 (UTC) FILETIME=[B6C023D0:01C00799] Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu D. C. Sessions as [DA] wrote: >Example: Unix CAE tools (e.g. IC place-and-route software) can cost over >$100,000 per seat. And yet it's freely downloadable. The CD or the >download >confer no rights at all; running the software downloaded that way without a >license *is* infringement. > >What confers the authority of the copyright holder is a license file. >Separate >transaction. I can buy a license for one seat or for one hundred. Same >CD, >loaded to the same disk. Different authority. How do *you* know that buying the license for the CAE software grants you authority? The DVD players come with explicit license agreements telling you that buying the player doesn't grant you any authority. I suspect under your [DA] model, the CAE company could just as well sue you for running the software that you download for free, using the license that you paid $100k for (nothing more than an expensive doily really) because you didn't rent space in their building which is *their* (undisclosed) mechanism for granting authority. Of course you don't get to learn this mechanism until you're in court ... ________________________________________________________________________ Get Your Private, Free E-mail from MSN Hotmail at http://www.hotmail.com From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 16 12:30:14 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA01017 for dvd-discuss-outgoing; Wed, 16 Aug 2000 12:30:14 -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 MAA01014 for ; Wed, 16 Aug 2000 12:30:13 -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 MAA21878 for ; Wed, 16 Aug 2000 12:30:05 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id MAA06149; Wed, 16 Aug 2000 12:30:04 -0400 (EDT) Date: Wed, 16 Aug 2000 12:30:04 -0400 (EDT) Message-Id: <200008161630.MAA06149@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Authorized devices? In-Reply-To: References: Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Harold Eaton writes: > How do *you* know that buying the license for the CAE software grants you > authority? I'm not personally familiar with the CAE tools in question. However, the Oracle database is distributed under a similar arrangement, and its the web download procedure shoves a license agreement in your face (roughly, "for evaluation only", no production use until you pay for a license which allows it), and won't give you a pointer to the file itself until you click "I agree". Their ftp server has been hacked not to show the names of the files, so you have to go through the forms hassle to get them. I imagine the CAE tools here have a similar arrangement; it's not hard to set up. Also, the stuff could have an installer which does the same thing. (Whether any of these things are actually binding contracts, given that Oracle or the CAE vendor has received no consideration, is another interesting question, which is well beyond my ken, but at any rate, that's how you know). > I suspect under your [DA] model, the CAE company could just as well > sue you for running the software that you download for free, using > the license that you paid $100k for (nothing more than an expensive > doily really) because you didn't rent space in their building which > is *their* (undisclosed) mechanism for granting authority. Of > course you don't get to learn this mechanism until you're in court > ... I would expect that the license agreement names the licensed software and explicitly grants the right to use it, subject to conditions (only so many distinct computers, etc.). rst From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 16 13:00:58 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA01260 for dvd-discuss-outgoing; Wed, 16 Aug 2000 13:00:58 -0400 Received: from mail2.panix.com (mail2.panix.com [166.84.0.213]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id NAA01257 for ; Wed, 16 Aug 2000 13:00:57 -0400 Received: from panix.com (www2.panix.com [166.84.0.221]) by mail2.panix.com (Postfix) with SMTP id 52BC78F04; Wed, 16 Aug 2000 13:00:49 -0400 (EDT) From: "Roy Murphy" To: Sphere , dvd-discuss@eon.law.harvard.edu Date: Wed, 16 Aug 2000 13:00:49 -0400 Subject: Re: [dvd-discuss] One more time, with authority X-Mailer: DMailWeb Web to Mail Gateway 2.6k, http://netwinsite.com/top_mail.htm Message-id: <399ac8c1.7498.0@panix.com> MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Yea, verily, thus spake Sphere: >Roy Murphy wrote: >> You're really barking up the wrong tree. "Political expression" is >> not a magic bullet excusing otherwise illegal activity. People do >> all kinds of illegal acts in the name of political expression or >> protest. They tend to end up in jail for it. > >It isn't doing something in the name of expression. It is expression. So is burning a Draft Card. The Supreme Court held that it could be forbidden even though it was political speech (the O'Brian case?). In his comments in the transcript, Kaplan was looking at different kinds of speech cases trying to find a category of speech that it fit into that would guide him on how to treat it. I don't think that he found a fit. From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 16 14:17:35 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA02249 for dvd-discuss-outgoing; Wed, 16 Aug 2000 14:17:35 -0400 Received: from dial94.roadrunner.com (dial94.cybermesa.com [209.12.75.94] (may be forged)) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id OAA02245 for ; Wed, 16 Aug 2000 14:17:27 -0400 Received: (from paul@localhost) by dial94.roadrunner.com (8.8.7/8.8.7) id MAA00737 for dvd-discuss@eon.law.harvard.edu; Wed, 16 Aug 2000 12:18:36 -0600 Date: Wed, 16 Aug 2000 12:18:35 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Authorized devices? Message-ID: <20000816121835.A583@localhost> References: <00081420271700.09283@frankenstein.lumbercartel.com> <20000815065744.A2657@ramtop.demon.co.uk> <00081519475500.10641@frankenstein.lumbercartel.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <00081519475500.10641@frankenstein.lumbercartel.com>; from dcs@mailhost.lumbercartel.com on Tue, Aug 15, 2000 at 07:32:28PM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, Aug 15, 2000 at 07:32:28PM -0700, D. C. Sessions wrote: > On Mon, 14 Aug 2000, ??? wrote: > > On Mon, Aug 14, 2000 at 08:15:48PM -0700, D. C. Sessions wrote: > > > On Mon, 14 Aug 2000, ??? wrote: > > > > > > > > > This is where the vagueness of the term "authority" in the statute > > > > is being used > > > > by the plaintiffs. But surely the DVDCCA grants authority to the > > > > player manufacturer, not to the device itself. > > > > > > "Surely" isn't a very cogent argument. > > > [DA] There is a chain of authority passing from the copyright holder, > > > through > > > its designated agent, the DVDCCA. The DVDCCA's scope is less than that > > > of the holder in that the DVDCCA cannot authorize, for instance, > > > reproduction > > > of 70mm theatre film. Similarly, the DVDCCA authorizes the > > > manufacturer to > > > produce only certain devices and not others; those devices carry > > > the holders' > > > authority to play certain DVDs and not others (e.g. region coding). > > > At each > > > step the scope of authority is narrowed. > > > > > OK, but none of that has anything to do with the authority granted to the > > purchaser when they buy their DVD disk. > > [DA] That's right -- because the purchase of the DVD grants no > authority whatsoever. Please provide a legal citation to support this extraordinary claim. Below I provide some citations that contradict your statement. 1. S.106 of Title 17 lists a copyright owner's exclusive rights. That set of rights is a specified, finite list of rights. Things like private viewing, which are not exclusive rights, are simply not a matter of copyright infringement. So while it would be technically correct to state that sale of a DVD would grant no authority to those uses, such a statement would be highly misleading because no authority is ever needed to make non-copyright use of a work after first sale. [ Although 1201(a) *might* change the situation _before_ first sale, you're not talking about that situation above.] 2. Furthermore, section 109 clearly states that the owner of a copy has the right to publicly display a copy: * (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. * (d) The privileges prescribed by subsections (a) and (c) do not, unless authorized by the copyright owner, extend to any person who has acquired possession of the copy or phonorecord from the copyright owner, by rental, lease, loan, or otherwise, without acquiring ownership of it. This is statutory authority, the authority of the copyright owners is not needed so long as one is the copy-owner. 3. If instead one takes DVDs "to be programs", then there is still statutory authority to execute the program. 17 U.S.C. 117(a): * (a) Making of Additional Copy or Adaptation by Owner of Copy. - Notwithstanding the provisions of section 106, it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided: + (1) that such a new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner, or + (2) that such new copy or adaptation is for archival purposes only and that all archival copies are destroyed in the event that continued possession of the computer program should cease to be rightful. > Example: Unix CAE tools (e.g. IC place-and-route software) can cost over > $100,000 per seat. And yet it's freely downloadable. The CD or the download > confer no rights at all; running the software downloaded that way without a > license *is* infringement. 17 U.S.C. 117(a) contradicts this statement. Please provide some legal authority to substantiate your assertion. If this is infringement, then one of the copyright holder's exclusive rights listed in 106 must be at issue. Which exclusive right is violated in the scenario you present above? If you can't specify which clause of section 106 is violated, then there can be no infringement. > What confers the authority of the copyright holder is a license file. > Separate transaction. I can buy a license for one seat or for one > hundred. Same CD, loaded to the same disk. Different authority. A. Kaplan's court does not seem to have paid much attention to the idea that DVD Video is a program. Because the statute differentiates between programs and other works for some purposes, analogies between CAE tools and DVDs are problematic. Title 17 provides somewhat different exemptions for programs and non-programs. B. What do you mean by "authority of the copyright holder"? There is section 106 authority, and there is 1201 authority. There are also uses which require no authority, and uses granted by statutory license (e.g. 17 U.S.C. 111(a)(4).) A point that Robert Thau makes can be rephrased roughly as, section 1201-authority is different from 106-authority. > [DA] CSS is the same system. The DVD itself is just an expensive coaster. > Legally, it confers absolutely nothing on the purchaser except ownership of > a shiny piece of plastic. This is wrong. Take a look at 17 U.S.C. 109(c). U.S. statutes are available at . [ ... ] > > > > And I don't see how it is possible to > > > > claim that the copyright holder is able to demand that only certain > > > > manufacturers devices are permitted to access the work, and yet > > > > still claim this is not interfering with fair use. > > > > > > [DA] Your failure to understand the law reflects on you, not on the law. This comment is not going to make friends. [ ... ] > > > > But the authority granted to the player manufacturers when they pay > > > > their licensing fee to the DVDCCA is seperate to the authority > > > > granted by the copyright holder to the consumer when they purchase > > > > their DVD disk. The plaintiff's argument seems to rely on treating > > > > these as the same thing. > > > > > > The plaintiffs' argument does no such thing. The authority to play > > > resides in the license of the player. They have made no claim whatever > > > WRT the disk. This is not true. A witness or deponent for the plaintiffs claimed that authority to descramble (_not_ "authority to play") resulted from the conjunction of an "authorized" player and an authorized disk. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 16 14:22:57 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA02442 for dvd-discuss-outgoing; Wed, 16 Aug 2000 14:22:57 -0400 Received: from dial94.roadrunner.com (dial94.cybermesa.com [209.12.75.94] (may be forged)) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id OAA02439 for ; Wed, 16 Aug 2000 14:22:52 -0400 Received: (from paul@localhost) by dial94.roadrunner.com (8.8.7/8.8.7) id MAA00789 for dvd-discuss@eon.law.harvard.edu; Wed, 16 Aug 2000 12:24:07 -0600 Date: Wed, 16 Aug 2000 12:24:06 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Date on which 120(a)(1) enters force, was: Authorized devices? Message-ID: <20000816122406.B583@localhost> References: <00081420271700.09283@frankenstein.lumbercartel.com> <20000815065744.A2657@ramtop.demon.co.uk> <00081519475500.10641@frankenstein.lumbercartel.com> <200008161324.JAA05212@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: <200008161324.JAA05212@soggy-fibers.ai.mit.edu>; from rst@ai.mit.edu on Wed, Aug 16, 2000 at 09:24:05AM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Wed, Aug 16, 2000 at 09:24:05AM -0400, Robert S. Thau wrote: > D. C. Sessions writes: [ ... ] > > [DA] You are allowed to use any legal device to access the DVD. > > For instance, your eyes aided by a microscope (which certainly has > > non-infringing uses) to read the little pits one by one. No > > problemo. But although the _use_ of an infringing device may be > > legal, its posession is not because the design, manufacture, and > > sale of such a device violates 1201. > > > > There is no claim of infringment before the Court. Only of matters > > dealing with devices which infringe. > > No, the court is dealing with a device which allegedly *circumvents an > access control* --- an act which isn't illegal now, but will be when > 1201 is in effect (later this year, IIRC). October 28, 2000. This is two years after the date of enactment. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 16 16:36:17 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA03636 for dvd-discuss-outgoing; Wed, 16 Aug 2000 16:36:17 -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 QAA03633 for ; Wed, 16 Aug 2000 16:36:13 -0400 Received: (from phil@localhost) by ramtop.demon.co.uk (8.9.3/8.9.3) id VAA08088 for dvd-discuss@eon.law.harvard.edu; Wed, 16 Aug 2000 21:00:46 +0100 Date: Wed, 16 Aug 2000 21:00:46 +0100 From: Phil Harrison To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Authorized devices? Message-ID: <20000816210046.C7905@ramtop.demon.co.uk> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <00081420271700.09283@frankenstein.lumbercartel.com> <20000815065744.A2657@ramtop.demon.co.uk> <00081519475500.10641@frankenstein.lumbercartel.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii Content-Disposition: inline User-Agent: Mutt/1.2.5i In-Reply-To: <00081519475500.10641@frankenstein.lumbercartel.com>; from dcs@mailhost.lumbercartel.com on Tue, Aug 15, 2000 at 07:32:28PM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, Aug 15, 2000 at 07:32:28PM -0700, D. C. Sessions wrote: > On Mon, 14 Aug 2000, you wrote: > > On Mon, Aug 14, 2000 at 08:15:48PM -0700, D. C. Sessions wrote: > > > On Mon, 14 Aug 2000, you wrote: > > > > > > > > > This is where the vagueness of the term "authority" in the statute is being used > > > > by the plaintiffs. But surely the DVDCCA grants authority to the player > > > > manufacturer, not to the device itself. > > > > > > "Surely" isn't a very cogent argument. > > > [DA] There is a chain of authority passing from the copyright holder, through > > > its designated agent, the DVDCCA. The DVDCCA's scope is less than that > > > of the holder in that the DVDCCA cannot authorize, for instance, reproduction > > > of 70mm theatre film. Similarly, the DVDCCA authorizes the manufacturer to > > > produce only certain devices and not others; those devices carry the holders' > > > authority to play certain DVDs and not others (e.g. region coding). At each > > > step the scope of authority is narrowed. > > > > > OK, but none of that has anything to do with the authority granted to the > > purchaser when they buy their DVD disk. > > [DA] That's right -- because the purchase of the DVD grants no authority whatsoever. > > Example: Unix CAE tools (e.g. IC place-and-route software) can cost over > $100,000 per seat. And yet it's freely downloadable. The CD or the download > confer no rights at all; running the software downloaded that way without a > license *is* infringement. > > What confers the authority of the copyright holder is a license file. Separate > transaction. I can buy a license for one seat or for one hundred. Same CD, > loaded to the same disk. Different authority. > > [DA] CSS is the same system. The DVD itself is just an expensive coaster. > Legally, it confers absolutely nothing on the purchaser except ownership of > a shiny piece of plastic. Purchase of a DVD player made under DVDCCA > license, on the other hand, is a required step in the chain transferring > authority from the holder, through its agent the DVDCCA, through the player > manufacturer, to the consumer. > Not wishing to go over the arguments already posted to the list, if the encrypted DVD content is to be regarded as similar to the CAE software, then the title key is the equivalent of the software license file. The title key is what allows the content to be accessed. But the title key is on the DVD and the transaction to obtain it is the purchase of the DVD disk. If authority was being granted purely with the purchase of the player, then there would be no decryption keys on the disk at all. -- Phil Harrison From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 16 17:44:26 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA05731 for dvd-discuss-outgoing; Wed, 16 Aug 2000 17:44:26 -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 RAA05724 for ; Wed, 16 Aug 2000 17:44:23 -0400 Received: from mediaone.net (h0060b03c5b8b.ne.mediaone.net [24.128.18.77]) by chmls05.mediaone.net (8.8.7/8.8.7) with ESMTP id RAA17842 for ; Wed, 16 Aug 2000 17:44:14 -0400 (EDT) Message-ID: <399B0B2D.8CA9D2A8@mediaone.net> Date: Wed, 16 Aug 2000 17:44:13 -0400 From: Sphere X-Mailer: Mozilla 4.73 [en] (WinNT; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] One more time, with authority References: <399ac8c1.7498.0@panix.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 Roy Murphy wrote: > > Yea, verily, thus spake Sphere: > >Roy Murphy wrote: > >> You're really barking up the wrong tree. "Political expression" is >> not > a magic bullet excusing otherwise illegal activity. People do > >> all kinds of illegal acts in the name of political expression or > >> protest. They tend to end up in jail for it. > > > >It isn't doing something in the name of expression. It is expression. > > So is burning a Draft Card. The Supreme Court held that it could be forbidden > even though it was political speech (the O'Brian case?). In his comments in > the transcript, Kaplan was looking at different kinds of speech cases trying > to find a category of speech that it fit into that would guide him on how to > treat it. I don't think that he found a fit. Well, I think he was trying to fit it into commercial speech; which would be best for the plaintiff. Best for the defendent probably comes under religious speech. Having never read DeCSS it's probably not entirely proper for me to try to translate it into English, but there's got to be a main() in it, and I think a fair translation of the beginning of that routine into understandable English would be along the lines of "In order to free speech trapped in CCS you..." -- Sphere. No permanence. No self. No perfection. From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 16 19:24:05 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA08243 for dvd-discuss-outgoing; Wed, 16 Aug 2000 19:24:05 -0400 Received: from mail2.panix.com (mail2.panix.com [166.84.0.213]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id TAA08240 for ; Wed, 16 Aug 2000 19:24:04 -0400 Received: from panix.com (www2.panix.com [166.84.0.221]) by mail2.panix.com (Postfix) with SMTP id 8F9DB9336 for ; Wed, 16 Aug 2000 19:23:56 -0400 (EDT) From: "Roy Murphy" To: dvd-discuss@eon.law.harvard.edu Date: Wed, 16 Aug 2000 19:23:56 -0400 Subject: Re: [dvd-discuss] One more time, with authority X-Mailer: DMailWeb Web to Mail Gateway 2.6k, http://netwinsite.com/top_mail.htm Message-id: <399b228c.4a0d.0@panix.com> MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Yea, verily, thus spake Sphere: >Roy Murphy wrote: >> So is burning a Draft Card. The Supreme Court held that it could be >> forbidden even though it was political speech (the O'Brian case?). >> In his comments in the transcript, Kaplan was looking at different >> kinds of speech cases trying to find a category of speech that it >> fit into that would guide him on how to treat it. I don't think >> that he found a fit. > >Well, I think he was trying to fit it >into commercial speech; which would be >best for the plaintiff. Best for the >defendent probably comes under religious >speech. If DeCSS fit nicely into an existing category of speech, Kaplan could then rely on precedent and rule in accordance with the precedent. In either case, I think we're facing a strict scrutiny test. IIRC, under strict scrutiny, speech is can be regulated if it is the least intrusive means of futhering an overriding state interest. (See http://www.lectlaw.com/def2/s118.htm or for more general First Amendment issues see http://www.lectlaw.com/files/con01.htm ). You tried to make a religious speech case earlier, but I just don't see it. Even assuming that you worship Linus Torvalds as the one, true incarnation of Tux the Penguin, I think you would have an impossible time convincing a court that your freedom to practice your religion is being abridged by barring Eric Corley from posting DsCSS on the web. The way that DeCSS will be allowed, if at all, relates to the question of whether it has significant uses other than circumvention or if fair use implies that the having means to accomplish fair use overrides the authority of the copyright holder when that holder has used a TPM to frustrate fair use or first sale. I personally think that the latter argument is the strongest one that we have. Yes, it was important to establish that DeCSS, in source code or object code, is speech. But that finding alone does not get us out of the woods. From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 16 19:35:04 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA09170 for dvd-discuss-outgoing; Wed, 16 Aug 2000 19:35:04 -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 TAA09167 for ; Wed, 16 Aug 2000 19:35:03 -0400 Received: by aero.org id <17640-3>; Wed, 16 Aug 2000 16:34:45 -0700 Received: from mhultra.aero.org(130.221.88.102) via SMTP by aero.org, id smtpdBBAa29355; Wed Aug 16 16:08:29 2000 Received: from ladir01.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Wed, 16 Aug 2000 16:05:37 -0700 Subject: Re: [dvd-discuss] Authorized devices, again. To: dvd-discuss@eon.law.harvard.edu From: Michael.A.Rolenz@aero.org Message-Id: X-MIMETrack: Serialize by Router on ladir01/AeroNet/Aerospace/US(Release 5.0.3 |March 21, 2000) at 08/16/2000 04:05:37 PM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Date: Wed, 16 Aug 2000 16:08:39 -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Reductio ad absurdum. No you own the physical components of your device but do not own the license to modify it or do what you will to it. Where is the line drawn and for what purpose? Technologically it can be drawn right up to YOUR living room [or workshop] What I love is the thought that they should be able to connect your applicances etc to the Internet to tell you it needs servicing, or an upgrade in firmware, or tell you that they won't service your applicance anymore or to verify that you did't buy any software or media from some streetvendor that you didn't know contained circumvention.....All for your benefit.......Privacy...welll Judge Bork assures us that there is NO right to privacy even in that blotch on the constitution known as the 9th amendment...BIG BROTHER is watching you but only to make your life better....afterall isn't that what everybody wants.....BIG BROTHER is doing it for your benefit.....he's giving you what everybody should want...gee...reminds me of a speech in a movie.....where's my copy of Deathrace2000.... No ...[sarcasm off]....You have a very valid point and one that must be settled N O W. My own view is that the MPAA inparticular (RIAA probably too) want to technologically "strikedown" the Betamax and Home Recording Acts.The clowns at MPAA etc have taken on someone who has been able to obtain legal counsel and can fight back but unless this line is drawn and the noses of the MPAA, RIAA, etc shoved into it. They will continue to go after anyone they don't like. At some point the courts and congress need to say ENOUGH. Our courts have enought serious cases [murder robbery etc] we don't want to waste time on Eric Corley who was only one person who showed the world how incompetent you are. I digress but I think your comments are right on the mark. From a pragmatic viewpoint....why bother. THere is a doctrine in law that states that the issue is so small that the law has no remedy. Meaning that the remedy far exceeds the damage or possible damage. [MPAA you've spent $100000 in fees to file suit against someone who has made a copy of your DVD and you;ve lost $20...well no actually, retail is half that...wholesale half that...manufacturing is half that...you own the plant...you've lost $2.50 and $5 = $7.50 and you make $100M a yr....get out of my courtroom!..] "anatoli tubman" @eon.law.harvard.edu on 08/14/2000 12:32:44 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] Authorized devices, again. At this point, no one playing DA answered a simple question: what *is* an authorized device. I grant you that a brand new Sony player, sealed with Sony seal, is authorized. Now I'm starting to perform modifications to it. At which point the device ceases to be authorized? Since there's an infinitude of possible modifications, and copyright holders cannot possibly specify in advance which are OK and which are not, one possibility remains: only unmodified devices are authorized. But I thought I *own* the player! Don't my ownership rights override their authorization policy? --- anatoli --== Sent via Deja.com http://www.deja.com/ ==-- Before you buy. From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 16 20:12:33 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA09525 for dvd-discuss-outgoing; Wed, 16 Aug 2000 20:12:33 -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 UAA09522 for ; Wed, 16 Aug 2000 20:12:32 -0400 Received: by aero.org id <17121-5>; Wed, 16 Aug 2000 17:12:19 -0700 Received: from mhultra.aero.org(130.221.88.102) via SMTP by aero.org, id smtpdDEAa04741; Wed Aug 16 17:11:53 2000 Received: from ladir01.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Wed, 16 Aug 2000 17:09:49 -0700 Subject: Re: [dvd-discuss] Authorized devices, again. To: dvd-discuss@eon.law.harvard.edu From: Michael.A.Rolenz@aero.org Message-Id: X-MIMETrack: Serialize by Router on ladir01/AeroNet/Aerospace/US(Release 5.0.3 |March 21, 2000) at 08/16/2000 05:09:49 PM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Date: Wed, 16 Aug 2000 17:11:57 -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Reductio ad absurdum. No you own the physical components of your device but do not own the license to modify it or do what you will to it. Where is the line drawn and for what purpose? Technologically it can be drawn right up to YOUR living room [or workshop] What I love is the thought that they should be able to connect your applicances etc to the Internet to tell you it needs servicing, or an upgrade in firmware, or tell you that they won't service your applicance anymore or to verify that you did't buy any software or media from some streetvendor that you didn't know contained circumvention.....All for your benefit.......Privacy...welll Judge Bork assures us that there is NO right to privacy even in that blotch on the constitution known as the 9th amendment...BIG BROTHER is watching you but only to make your life better....afterall isn't that what everybody wants.....BIG BROTHER is doing it for your benefit.....he's giving you what everybody should want...gee...reminds me of a speech in a movie.....where's my copy of Deathrace2000.... No ...[sarcasm off]....You have a very valid point and one that must be settled N O W. My own view is that the MPAA inparticular (RIAA probably too) want to technologically "strikedown" the Betamax and Home Recording Acts.The clowns at MPAA etc have taken on someone who has been able to obtain legal counsel and can fight back but unless this line is drawn and the noses of the MPAA, RIAA, etc shoved into it. They will continue to go after anyone they don't like. At some point the courts and congress need to say ENOUGH. Our courts have enought serious cases [murder robbery etc] we don't want to waste time on Eric Corley who was only one person who showed the world how incompetent you are. I digress but I think your comments are right on the mark. From a pragmatic viewpoint....why bother. THere is a doctrine in law that states that the issue is so small that the law has no remedy. Meaning that the remedy far exceeds the damage or possible damage. [MPAA you've spent $100000 in fees to file suit against someone who has made a copy of your DVD and you;ve lost $20...well no actually, retail is half that...wholesale half that...manufacturing is half that...you own the plant...you've lost $2.50 and $5 = $7.50 and you make $100M a yr....get out of my courtroom!..] "anatoli tubman" @eon.law.harvard.edu on 08/14/2000 12:32:44 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] Authorized devices, again. At this point, no one playing DA answered a simple question: what *is* an authorized device. I grant you that a brand new Sony player, sealed with Sony seal, is authorized. Now I'm starting to perform modifications to it. At which point the device ceases to be authorized? Since there's an infinitude of possible modifications, and copyright holders cannot possibly specify in advance which are OK and which are not, one possibility remains: only unmodified devices are authorized. But I thought I *own* the player! Don't my ownership rights override their authorization policy? --- anatoli --== Sent via Deja.com http://www.deja.com/ ==-- Before you buy. From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 16 20:12:19 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA09517 for dvd-discuss-outgoing; Wed, 16 Aug 2000 20:12:19 -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 UAA09514 for ; Wed, 16 Aug 2000 20:12:18 -0400 Received: by aero.org id <17144-2>; Wed, 16 Aug 2000 17:11:53 -0700 Received: from mhultra.aero.org(130.221.88.102) via SMTP by aero.org, id smtpdQDAa04741; Wed Aug 16 17:11:02 2000 Received: from ladir01.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Wed, 16 Aug 2000 17:09:45 -0700 Subject: Re: [dvd-discuss] Encrypting books To: dvd-discuss@eon.law.harvard.edu From: Michael.A.Rolenz@aero.org Message-Id: X-MIMETrack: Serialize by Router on ladir01/AeroNet/Aerospace/US(Release 5.0.3 |March 21, 2000) at 08/16/2000 05:09:46 PM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Date: Wed, 16 Aug 2000 17:11:16 -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Yes. Read the Time Warner comments on the DMCA in the latest go round of comments. THis is the point that they are omitting. They are concentrating we gotta be protected now...but missing the ...OK in exchange for protection today YOU will give up XXX tomorrow...actually I've been pondering the reply to them [and how to rework the comments I didn't get in before the deadline to have some effect; I don't know if they will automatically submit them as reply comments since I missed the deadline by 8 hrs.] What I have been pondering is the fact that the media is different in the 20th and 21st century than in previous centuries. Before, books, posters, pamplets, sheet music - printed material were self contained. THere NEVER was any question of what happens when copyrights expire. The media preserved the work and was visually accessible to anyone who wanted to make a copy. Not so with 20th century media. Films require a projector (OK look at the sizes 8mm, super8, 35mm, 70mm, 16mm, cinarama, cinamascope, smellovision, shockovision, 3D etc), Records (78rpm, 33 rpm, 45 rpm), Video (3/4", BetaMax, VHS), Magnetic Tape (1/4" reel to real, 1/2" real to real, 4 track, 8 track, cassette, ) CD (one format.!) DVD (ONE format) DVD Audio (one format). Each of these requires additonal hardware beyond the copyrighted material for access. THe copyrighted work is no longer self contained (even source code can be printed out on a listing..albeit long..look at PGP). Previously copyrighted material could pass into the public domain from even a single copy (safety in numbers) but what have we with the DMCA. Without knowledge ofthe access scheme NOTHING can pass into the public domain. I didn't realize it before a few weeks ago but I've spent a lot of money buying 8 track tapes, cassette tapes, records, CDs , a few reel to reel, a couple of 4 tracks of the same recordings over the last 30yrs! Now with CD and the projected enhancements of DVD audio (...OK does anybody know what those are), they can't give me a "superior" media or a more convenient media any more as a sales pitch. CD sized objects are more convenient than records, cassettes and certainly 8 track. It doesn't break down mechanically as does magnetic tapes. What better media can they sell me? NONE. The twist here is that now they make it illegal to reverse engineer. With strong encryption and access controls they can keep things out of the public domain indefinitly....They have reached the limits of what is needed or desirable for media....one less area of C O N T R O L ...to maintain control they have to go after the players... One interesting point to consider is that some of the studies done for cable TV showed that people were not interesting in better performance but more programming. Once the SNR got above a certain point, they really didn't care about quality. Unless you have the device to exploit it it's all wasted...BTW as for CDs....sample rate 48ksps. Nyquist rate is 44ksps. 10% sampling overhead...acceptable 20-40% would have been better IMHO. Sample interpolation = 8-16x with todays players: acceptable roll off of reconstruction filter. Assuming studio electronics is better than my stereo system, the degradation is in my system. THD of amplifiers is low (high end 70's discrete technology). Speakers = 12" 70's Utahs w/o crossover to tweeta...not that it really matters, my right ear can't hear well at 5kcps....I don't see much point to audio DVDs Well to emphasize this point a skunk has walked past my house and the air stinks, (No I'm not jokingIn LA county it is illegal to feed skunks and I can understand the reason...I've had more dealings with skunks in the last year)...Time Warner...Warner Bros...Pepe Le Pue...that's one of their cartoon charactes..seems apropos... "Harold Eaton" @eon.law.harvard.edu on 08/14/2000 01:44:42 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] Encrypting books Sham Gardner wrote: >IIRC the DMCA says "effectively controls access to a *copyrighted* work" >(emphasis mine). Surely if the work is public domain it doens't apply? Although it doesn't say this explicitly, it IS implied. But the problem here is that the *same* access control TPM is being used for copyrighted and public domain works, so it is illegal to traffic in "circumvention devices" even though they can be used to gain access to non-copyrighted works. In 200 years (I'm anticipating another couple rounds of copyright term extensions), the movie "You've got mail" will no longer be copyrighted, but it (old copies and re-releases, if any) will *still* be protected by the TPM because the same TPM is used to protect recent copyrighted works. Under the P's reading of this law, their copyright rights are (indirectly) absolute, unlimited, and perpetual. ________________________________________________________________________ Get Your Private, Free E-mail from MSN Hotmail at http://www.hotmail.com From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 16 20:15:32 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA09669 for dvd-discuss-outgoing; Wed, 16 Aug 2000 20:15:32 -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 UAA09666 for ; Wed, 16 Aug 2000 20:15:31 -0400 Received: from mediaone.net (h0060b03c5b8b.ne.mediaone.net [24.128.18.77]) by chmls06.mediaone.net (8.8.7/8.8.7) with ESMTP id UAA28509 for ; Wed, 16 Aug 2000 20:15:20 -0400 (EDT) Message-ID: <399B2E99.84E0B012@mediaone.net> Date: Wed, 16 Aug 2000 20:15:21 -0400 From: Sphere X-Mailer: Mozilla 4.73 [en] (WinNT; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] One more time, with authority References: <399b228c.4a0d.0@panix.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 Roy Murphy wrote: > > Yea, verily, thus spake Sphere: > >Roy Murphy wrote: > >> So is burning a Draft Card. The Supreme Court held that it could be >> forbidden > even though it was political speech (the O'Brian case?). > >> In his comments in the transcript, Kaplan was looking at different > >> kinds of speech cases trying to find a category of speech that it > >> fit into that would guide him on how to treat it. I don't think > >> that he found a fit. > > > >Well, I think he was trying to fit it > >into commercial speech; which would be > >best for the plaintiff. Best for the > >defendent probably comes under religious > >speech. > > If DeCSS fit nicely into an existing category of speech, Kaplan could then rely > on precedent and rule in accordance with the precedent. In either case, I think > we're facing a strict scrutiny test. IIRC, under strict scrutiny, speech is > can be regulated if it is the least intrusive means of futhering an overriding > state interest. (See http://www.lectlaw.com/def2/s118.htm or for more general > First Amendment issues see http://www.lectlaw.com/files/con01.htm ). I hope so. It makes things more difficult for the "Big Bad Corporations." (Business is the cellular structure of society, big business is cancer.) > You tried to make a religious speech case earlier, but I just don't see it. > Even assuming that you worship Linus Torvalds as the one, true incarnation > of Tux the Penguin, I think you would have an impossible time convincing a court > that your freedom to practice your religion is being abridged by barring Eric > Corley from posting DsCSS on the web. Torvalds has nothing much to do with it. I think the cleanest expression of their faith I've seen so far is "Information wants to be free." This is not a short course in economics. The religion is little less than a taking of the first amendment at face value; which might not be a comfortable way for lawyers to look at the first amendment. The issue, as with all law, is at what point do the people decide to ignore the law? The people who subscribe to The Hacker's Quarterly can actually read DeCSS. Among them are some people who could very effectively ignore the law. Ignoring the political/religious implications of DeCSS may very well be the beginning of revolution. In fact, all the people trading MP3s might have already begun the revolution. > The way that DeCSS will be allowed, if at all, relates to the question of whether > it has significant uses other than circumvention or if fair use implies that > the having means to accomplish fair use overrides the authority of the copyright > holder when that holder has used a TPM to frustrate fair use or first sale. > I personally think that the latter argument is the strongest one that we have. This is a narrow reading of statute. The basic problem is that first amendment values have come into direct confrontation with copyright and commercial interests. When the confrontation is direct which one wins? > Yes, it was important to establish that DeCSS, in source code or object code, > is speech. But that finding alone does not get us out of the woods. Agreed. But the woods is civil unrest, not legal niceties. Any reading of the law which does not square with the actively expressed viewpoint of some 20+ million Americans will eventually lead to a breakdown in civil order. The single greatest fear the courts must have is that they will be ignored. Banning DeCSS is virtually guarenteed to be ignored. -- Sphere. No permanence. No self. No perfection. From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 16 21:12:05 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA09943 for dvd-discuss-outgoing; Wed, 16 Aug 2000 21:12:05 -0400 Received: from smtp03.primenet.com (smtp03.primenet.com [206.165.6.133]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id VAA09940 for ; Wed, 16 Aug 2000 21:12:03 -0400 Received: (from daemon@localhost) by smtp03.primenet.com (8.9.3/8.9.3) id SAA17251 for ; Wed, 16 Aug 2000 18:10:55 -0700 (MST) Received: from sessions.phx.primenet.com(206.132.239.114), claiming to be "heorot.lumbercartel.com" via SMTP by smtp03.primenet.com, id smtpdAAAn5a4AH; Wed Aug 16 18:10:45 2000 Received: from frankenstein.lumbercartel.com (IDENT:dcs@frankenstein.lumbercartel.com [192.168.6.2]) by heorot.lumbercartel.com (8.9.3/8.8.7) with SMTP id SAA20194 for ; Wed, 16 Aug 2000 18:10:53 -0700 From: "D. C. Sessions" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Authorized devices? Date: Wed, 16 Aug 2000 18:05:28 -0700 X-Mailer: KMail [version 1.0.29] Content-Type: text/plain References: <200008161630.MAA06149@soggy-fibers.ai.mit.edu> In-Reply-To: <200008161630.MAA06149@soggy-fibers.ai.mit.edu> MIME-Version: 1.0 Message-Id: <00081618105200.11502@frankenstein.lumbercartel.com> Content-Transfer-Encoding: 8bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Wed, 16 Aug 2000, you wrote: > Harold Eaton writes: > > How do *you* know that buying the license for the CAE software grants you > > authority? > > I'm not personally familiar with the CAE tools in question. However, > the Oracle database is distributed under a similar arrangement, and > its the web download procedure shoves a license agreement in your face > (roughly, "for evaluation only", no production use until you pay for a > license which allows it), and won't give you a pointer to the file > itself until you click "I agree". Their ftp server has been hacked > not to show the names of the files, so you have to go through the > forms hassle to get them. > > I imagine the CAE tools here have a similar arrangement; it's not hard > to set up. Also, the stuff could have an installer which does the > same thing. No, the license is a file containing a hash code. License server software allows checking out some number of licenses (as specified in the license file) and the CAE software checks out licenses from the server. Once the available license pool is exhausted (or there wasn't a valid license in the first place) the software can't check out a license and won't run. IMHO *this* is the kind of TPM that 1201 is on its face meant to deal with and, also IMHO, such an application of the law is reasonable. The application of 1201 by the entertainment distributors to maintain control of the channel is quite another matter. -- | Microsoft: "A reputation for releasing inferior software will make | | it more difficult for a software vendor to induce customers to pay | | for new products or new versions of existing products." | +----------- D. C. & M. V. Sessions ----------+ From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 16 21:23:47 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA10241 for dvd-discuss-outgoing; Wed, 16 Aug 2000 21:23:47 -0400 Received: from smtp03.primenet.com (smtp03.primenet.com [206.165.6.133]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id VAA10238 for ; Wed, 16 Aug 2000 21:23:46 -0400 Received: (from daemon@localhost) by smtp03.primenet.com (8.9.3/8.9.3) id SAA22031 for ; Wed, 16 Aug 2000 18:22:38 -0700 (MST) Received: from sessions.phx.primenet.com(206.132.239.114), claiming to be "heorot.lumbercartel.com" via SMTP by smtp03.primenet.com, id smtpdAAAkTaa1Q; Wed Aug 16 18:22:24 2000 Received: from frankenstein.lumbercartel.com (IDENT:dcs@frankenstein.lumbercartel.com [192.168.6.2]) by heorot.lumbercartel.com (8.9.3/8.8.7) with SMTP id SAA20385 for ; Wed, 16 Aug 2000 18:22:52 -0700 From: "D. C. Sessions" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Authorized devices? Date: Wed, 16 Aug 2000 18:15:58 -0700 X-Mailer: KMail [version 1.0.29] Content-Type: text/plain References: <00081519475500.10641@frankenstein.lumbercartel.com> <20000816210046.C7905@ramtop.demon.co.uk> In-Reply-To: <20000816210046.C7905@ramtop.demon.co.uk> MIME-Version: 1.0 Message-Id: <00081618225201.11502@frankenstein.lumbercartel.com> Content-Transfer-Encoding: 8bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Wed, 16 Aug 2000, you wrote: > On Tue, Aug 15, 2000 at 07:32:28PM -0700, D. C. Sessions wrote: > > [DA] CSS is the same system. The DVD itself is just an expensive coaster. > > Legally, it confers absolutely nothing on the purchaser except ownership of > > a shiny piece of plastic. Purchase of a DVD player made under DVDCCA > > license, on the other hand, is a required step in the chain transferring > > authority from the holder, through its agent the DVDCCA, through the player > > manufacturer, to the consumer. > > > Not wishing to go over the arguments already posted to the list, if the > encrypted DVD content is to be regarded as similar to the CAE software, then the > title key is the equivalent of the software license file. The title key is what > allows the content to be accessed. But the title key is on the DVD and the > transaction to obtain it is the purchase of the DVD disk. > > If authority was being granted purely with the purchase of the player, then > there would be no decryption keys on the disk at all. [DA] The 'keys' on the disk are the means for enforcing the requirement for the appropriate player. If you don't have one of the players that matches the key on the disk, then it's not supposed to be an approved player and you aren't supposed to play the content. Look, I'm arguing against conviction here. But I haven't seen the DVDCCA position taken all the way (not that we know that this is their position) by assuming that they're pursuing the idea that this is ALL about the player and not about the disk at all. Several things point in that direction, including their apparent indifference to the previous video-capture methods contrasted with their every-last-drop determination wrt DeCSS. They really care about the blasted players, and whatever line they take *will* be targeted to maintaining their lock on the player manufacturers. -- | Microsoft: "A reputation for releasing inferior software will make | | it more difficult for a software vendor to induce customers to pay | | for new products or new versions of existing products." | +----------- D. C. & M. V. Sessions ----------+ From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 16 21:29:20 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA10327 for dvd-discuss-outgoing; Wed, 16 Aug 2000 21:29:20 -0400 Received: from smtp03.primenet.com (smtp03.primenet.com [206.165.6.133]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id VAA10324 for ; Wed, 16 Aug 2000 21:29:19 -0400 Received: (from daemon@localhost) by smtp03.primenet.com (8.9.3/8.9.3) id SAA24185 for ; Wed, 16 Aug 2000 18:28:11 -0700 (MST) Received: from sessions.phx.primenet.com(206.132.239.114), claiming to be "heorot.lumbercartel.com" via SMTP by smtp03.primenet.com, id smtpdAAAhkailV; Wed Aug 16 18:28:06 2000 Received: from frankenstein.lumbercartel.com (IDENT:dcs@frankenstein.lumbercartel.com [192.168.6.2]) by heorot.lumbercartel.com (8.9.3/8.8.7) with SMTP id SAA20437 for ; Wed, 16 Aug 2000 18:29:05 -0700 From: "D. C. Sessions" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Authorized devices? Date: Wed, 16 Aug 2000 18:23:51 -0700 X-Mailer: KMail [version 1.0.29] Content-Type: text/plain References: <00081519475500.10641@frankenstein.lumbercartel.com> <200008161324.JAA05212@soggy-fibers.ai.mit.edu> In-Reply-To: <200008161324.JAA05212@soggy-fibers.ai.mit.edu> MIME-Version: 1.0 Message-Id: <00081618290402.11502@frankenstein.lumbercartel.com> Content-Transfer-Encoding: 8bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Wed, 16 Aug 2000, Robert S. Thau wrote: > D. C. Sessions writes: > > [DA] CSS is the same system. The DVD itself is just an expensive > > coaster. Legally, it confers absolutely nothing on the purchaser > > except ownership of a shiny piece of plastic. Purchase of a DVD > > player made under DVDCCA license, on the other hand, is a required > > step in the chain transferring authority from the holder, through > > its agent the DVDCCA, through the player manufacturer, to the > > consumer. > And when we find players that do come with license agreements (PC > software DVD players), those license agreements state explicitly that > the license grants *no* right to view any content. See for instance > the Xing player license (incorporated in full in one of the exhibits > to the California trade-secret case), which includes this clause: Was that brought in evidence? Because that would shoot down at least one line that the Plaintiffs might take. > > [DA] Purchase of the disk has nothing to do with it. Purchase of > > the player does. > > Then how come the player licenses say otherwise? Because the Plaintiffs were trying to lay claim to air? -- | Microsoft: "A reputation for releasing inferior software will make | | it more difficult for a software vendor to induce customers to pay | | for new products or new versions of existing products." | +----------- D. C. & M. V. Sessions ----------+ From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 16 22:04:31 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA10506 for dvd-discuss-outgoing; Wed, 16 Aug 2000 22:04:31 -0400 Received: from smtp02.primenet.com (smtp02.primenet.com [206.165.6.132]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id WAA10503 for ; Wed, 16 Aug 2000 22:04:29 -0400 Received: (from daemon@localhost) by smtp02.primenet.com (8.9.3/8.9.3) id TAA13883 for ; Wed, 16 Aug 2000 19:02:21 -0700 (MST) Received: from sessions.phx.primenet.com(206.132.239.114), claiming to be "heorot.lumbercartel.com" via SMTP by smtp02.primenet.com, id smtpdAAApWaOcB; Wed Aug 16 19:02:12 2000 Received: from frankenstein.lumbercartel.com (IDENT:dcs@frankenstein.lumbercartel.com [192.168.6.2]) by heorot.lumbercartel.com (8.9.3/8.8.7) with SMTP id TAA20587 for ; Wed, 16 Aug 2000 19:03:41 -0700 From: "D. C. Sessions" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Authorized devices? Date: Wed, 16 Aug 2000 18:29:11 -0700 X-Mailer: KMail [version 1.0.29] Content-Type: text/plain References: <200008161407.e7GE7nc05237@tbird.iworld.com> In-Reply-To: <200008161407.e7GE7nc05237@tbird.iworld.com> MIME-Version: 1.0 Message-Id: <00081619034003.11502@frankenstein.lumbercartel.com> Content-Transfer-Encoding: 8bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Wed, 16 Aug 2000, Rares Marian wrote: > Robert S. Thau wrote: > > > [DA] CSS is the same system. The DVD itself is just an expensive > > > coaster. Legally, it confers absolutely nothing on the purchaser > > > except ownership of a shiny piece of plastic. Purchase of a DVD > > > player made under DVDCCA license, on the other hand, is a required > > > step in the chain transferring authority from the holder, through > > > its agent the DVDCCA, through the player manufacturer, to the > > > consumer. > > If that's the case why am I paying for the DVD? Maybe you collect coasters? A lot of software comes with the nonsensical warranty that only the ability of the medium to hold bits is supported; anything else is not covered. Could be the DVDCCA was aiming for a similar effect. > > > [DA] Because the player is the key that opens the lock. Sure, you > > > can get into the house in many ways. The door may not even be > > > locked. But posession of the key, transferred to you in unbroken > > > chain from the owner through its representatives, > > > authorizes you to enter the house. > > If I steal a key it's okay for me to enter the house? Or does the title (hint hint) or > liens or whatever legally recognized piece of papper has the sentence Rares Marian > owns this house (sorry I'm not an expert in the terminology) to the house give me > authority to enter? No, the key is the token of that authority. Some of our practices are distant descendents of the rituals of the past. The King's scepter doesn't give the King authority, nor does stealing the scepter confer royal authority on the thief. Nonetheless the scepter is important in the ritual application of the King's authority. Similarly, a key is a token of authority to enter a room. The lock just makes it very difficult to claim that one entered innocently (locks keep honest people honest.) The problem with the whole idea of applying the "DVD is the key" analogy to CSS is that the DVD has the key on it. Which really, really, does make any attempt to claim that CSS is an "effective" means pretty ludicrous on its face. And it's always a cardinal mistake to assume that the other side is just stupid. So if the DVD isn't the key, it's the lock. It's not the player that enforces the protection of the DVD, it's the DVD that enforces the protection of the player. Which is what CSS was, from all indications, intended to do. > >Then how come the player licenses say otherwise? > > Because nobody wants to be held responsible, nor do they want you to know that > the licensing allow you to view stolen discs. It's a smokescreen. It's designed to > keep people arguing while they pull the strings. Works for me. General note: I don't have a problem with the idea that the studios and record labels are freaking out. They are facing a technological future where their real stock in trade (control of a distribution channel) is greatly devalued if not wiped out just as they are raking in more money from less effort than at any time in history. They're threatened. They are grasping at straws. But they are NOT necessarily stupid. They are NOT necessarily incapable of hiring top-flight talent to solve their business problem. So when they put as much effort and money as they have into something as lame as CSS and 1201, only a fool will assume that they don't serve their purposes. It might make a lot of sense to assume that the plaintiffs are acting with resource and intelligence in a desperate situation. If their actions don't make sense to us, we should assume that that's because we're mistaken about their purpose, not that they're fools. What they probably wanted was a stratightforward application of cryptography, where the bulk of the message can be passed around indiscriminately (e.g., on the Net) but is useless without the key, which is somehow controlled. Absent something like Intel's processor ID and individual licenses this isn't going to be technologically feasible. and without fundamental changes in copyright law it isn't going to be legally enforcable. Which suggests that 1201 and CSS were the best compromise they could negotiate on the way to a fundamental overhaul of copyright law. As long as they can establish that unauthorized players are illegal, at some time in the future they have the chance to arrange per-user or per-view control by technological means. -- | Microsoft: "A reputation for releasing inferior software will make | | it more difficult for a software vendor to induce customers to pay | | for new products or new versions of existing products." | +----------- D. C. & M. V. Sessions ----------+ From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 16 22:29:05 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA10683 for dvd-discuss-outgoing; Wed, 16 Aug 2000 22:29:05 -0400 Received: from smtp05.primenet.com (smtp05.primenet.com [206.165.6.135]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id WAA10680 for ; Wed, 16 Aug 2000 22:29:04 -0400 Received: (from daemon@localhost) by smtp05.primenet.com (8.9.3/8.9.3) id TAA00198 for ; Wed, 16 Aug 2000 19:29:00 -0700 (MST) Received: from sessions.phx.primenet.com(206.132.239.114), claiming to be "heorot.lumbercartel.com" via SMTP by smtp05.primenet.com, id smtpdAAApGaqoa; Wed Aug 16 19:28:53 2000 Received: from frankenstein.lumbercartel.com (IDENT:dcs@frankenstein.lumbercartel.com [192.168.6.2]) by heorot.lumbercartel.com (8.9.3/8.8.7) with SMTP id TAA20764 for ; Wed, 16 Aug 2000 19:28:16 -0700 From: "D. C. Sessions" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Authorized devices? Date: Wed, 16 Aug 2000 19:05:39 -0700 X-Mailer: KMail [version 1.0.29] Content-Type: text/plain References: <00081519475500.10641@frankenstein.lumbercartel.com> <20000816121835.A583@localhost> In-Reply-To: <20000816121835.A583@localhost> MIME-Version: 1.0 Message-Id: <00081619281604.11502@frankenstein.lumbercartel.com> Content-Transfer-Encoding: 8bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Wed, 16 Aug 2000, Paul Fenimore wrote: > On Tue, Aug 15, 2000 at 07:32:28PM -0700, D. C. Sessions wrote: > > On Mon, 14 Aug 2000, ??? wrote: > > > On Mon, Aug 14, 2000 at 08:15:48PM -0700, D. C. Sessions wrote: > > > OK, but none of that has anything to do with the authority granted to the > > > purchaser when they buy their DVD disk. > > > > [DA] That's right -- because the purchase of the DVD grants no > > authority whatsoever. > > Please provide a legal citation to support this extraordinary claim. None whatsoever. But from a whole host of observations that's the direction that the plaintiffs are headed. Patently, CSS makes no distinction between a kosher DVD and a Chinese bootleg made on the same machine that made the legit one, except the next day. As a protection against copying of disks it's a total and absolute failure, and anyone with half a brain could have forseen that. Now since it strains credulity that in the entire process leading up to the selection of CSS there was NOBODY involved with an IQ greater than room temperature, it follows that that wasn't CSS' purpose from the beginning. > Below I provide some citations that contradict your statement. And *I'm* persuaded. Which isn't to say that once the Plaintiffs are finally driven to reveal something resembling a legal theory (as distinct from the Viewing With Alarm so far displayed) that your point will withstand attack. > 2. > Furthermore, section 109 clearly states that the owner of a copy has the > right to publicly display a copy: > > * (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. Go right ahead. Look at the DVD all you want :-) Suggestion: the plaintiffs are unlikely to compare a DVD to a book, because that's the one form of copyrighted material that is LEAST suited to their purpose. Sheet music might come closer, in that DISPLAY isn't what's at issue. Rather they will compare playing the DVD to playing a musical compositon, which is somewhat more strictly controlled than reading a book (one may display the sheet music without royalty, but performing it is another matter.) > > Example: Unix CAE tools (e.g. IC place-and-route software) can cost over > > $100,000 per seat. And yet it's freely downloadable. The CD or the download > > confer no rights at all; running the software downloaded that way without a > > license *is* infringement. > > 17 U.S.C. 117(a) contradicts this statement. Please provide some legal > authority to substantiate your assertion. If this is infringement, then > one of the copyright holder's exclusive rights listed in 106 must be > at issue. Which exclusive right is violated in the scenario you present > above? If you can't specify which clause of section 106 is violated, then > there can be no infringement. Haven't a clue legally. This is, however, very widespread practice in the heavy duty software community and from several trade publication reports has stood up to a fair bit of judicial scrutiny. Which means that there may be precedent that the defense ignores at peril. > > What confers the authority of the copyright holder is a license file. > > Separate transaction. I can buy a license for one seat or for one > > hundred. Same CD, loaded to the same disk. Different authority. > > A. Kaplan's court does not seem to have paid much attention to the idea > that DVD Video is a program. Because the statute differentiates between > programs and other works for some purposes, analogies between CAE tools > and DVDs are problematic. Title 17 provides somewhat different exemptions > for programs and non-programs. Hope so. Because the law on that front seems pretty well settled and more in the Plaintiffs' favor than I for one would like. > > [DA] CSS is the same system. The DVD itself is just an expensive coaster. > > Legally, it confers absolutely nothing on the purchaser except ownership of > > a shiny piece of plastic. > > This is wrong. Take a look at 17 U.S.C. 109(c). U.S. statutes are available > at . I hope you're right. Except that the CAE software market seems to have set a good bit of precedent. IF that applies (way out of my field) then the plaintiffs may be able to take advantage it. > > > > [DA] Your failure to understand the law reflects on you, not on the law. > > This comment is not going to make friends. One of the compensations for playing Devil's Advocate is the opportunity to be evil in a good cause. > > > > > But the authority granted to the player manufacturers when they pay > > > > > their licensing fee to the DVDCCA is seperate to the authority > > > > > granted by the copyright holder to the consumer when they purchase > > > > > their DVD disk. The plaintiff's argument seems to rely on treating > > > > > these as the same thing. > > > > > > > > The plaintiffs' argument does no such thing. The authority to play > > > > resides in the license of the player. They have made no claim whatever > > > > WRT the disk. > > This is not true. A witness or deponent for the plaintiffs claimed that > authority to descramble (_not_ "authority to play") resulted from the > conjunction of an "authorized" player and an authorized disk. Two-part key theory. Nothing like belts and suspenders; of COURSE they want to stake out as much territory as possible. Still, if driven to give up one or the other I'd bet that they will abandon the DVD instead of the player. As everyone (except possibly the Court) knows the market is awash in disks that are completely indistinguishable from the Real Thing. Which means that the only hold the studios have left is their leverage over the player manufacturers. -- | Microsoft: "A reputation for releasing inferior software will make | | it more difficult for a software vendor to induce customers to pay | | for new products or new versions of existing products." | +----------- D. C. & M. V. Sessions ----------+ From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 16 22:32:53 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA10801 for dvd-discuss-outgoing; Wed, 16 Aug 2000 22:32:53 -0400 Received: from smtp04.primenet.com (smtp04.primenet.com [206.165.6.134]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id WAA10798 for ; Wed, 16 Aug 2000 22:32:52 -0400 Received: (from daemon@localhost) by smtp04.primenet.com (8.9.3/8.9.3) id TAA28630 for ; Wed, 16 Aug 2000 19:31:00 -0700 (MST) Received: from sessions.phx.primenet.com(206.132.239.114), claiming to be "heorot.lumbercartel.com" via SMTP by smtp04.primenet.com, id smtpdAAAN6aO33; Wed Aug 16 19:30:53 2000 Received: from frankenstein.lumbercartel.com (IDENT:dcs@frankenstein.lumbercartel.com [192.168.6.2]) by heorot.lumbercartel.com (8.9.3/8.8.7) with SMTP id TAA20820 for ; Wed, 16 Aug 2000 19:32:35 -0700 From: "D. C. Sessions" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Authorized devices? Date: Wed, 16 Aug 2000 19:29:13 -0700 X-Mailer: KMail [version 1.0.29] Content-Type: text/plain References: <00081519475500.10641@frankenstein.lumbercartel.com> <20000816210046.C7905@ramtop.demon.co.uk> In-Reply-To: <20000816210046.C7905@ramtop.demon.co.uk> MIME-Version: 1.0 Message-Id: <00081619323505.11502@frankenstein.lumbercartel.com> Content-Transfer-Encoding: 8bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Wed, 16 Aug 2000, Phil Harrison wrote: > On Tue, Aug 15, 2000 at 07:32:28PM -0700, D. C. Sessions wrote: > > [DA] CSS is the same system. The DVD itself is just an expensive coaster. > > Legally, it confers absolutely nothing on the purchaser except ownership of > > a shiny piece of plastic. Purchase of a DVD player made under DVDCCA > > license, on the other hand, is a required step in the chain transferring > > authority from the holder, through its agent the DVDCCA, through the player > > manufacturer, to the consumer. > > > Not wishing to go over the arguments already posted to the list, if the > encrypted DVD content is to be regarded as similar to the CAE software, then the > title key is the equivalent of the software license file. The title key is what > allows the content to be accessed. But the title key is on the DVD and the > transaction to obtain it is the purchase of the DVD disk. > > If authority was being granted purely with the purchase of the player, then > there would be no decryption keys on the disk at all. Sure there is. The coding on the disk validates the player. CSS is designed to control the market for DVD players. Look at the way that it allows the publisher to enable and disable players on the fly but does absolutely nothing to prevent mass production of bootleg disks. Granted that there's no legal basis for this but everything points to THAT being the objective. -- | Microsoft: "A reputation for releasing inferior software will make | | it more difficult for a software vendor to induce customers to pay | | for new products or new versions of existing products." | +----------- D. C. & M. V. Sessions ----------+ From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 16 22:40:17 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA10924 for dvd-discuss-outgoing; Wed, 16 Aug 2000 22:40:17 -0400 Received: from tbird.iworld.com ([63.236.72.237]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id WAA10921 for ; Wed, 16 Aug 2000 22:40:16 -0400 Received: (from nobody@localhost) by tbird.iworld.com (8.10.2/8.10.2) id e7H2dW905096; Wed, 16 Aug 2000 22:39:32 -0400 Date: Wed, 16 Aug 2000 22:39:32 -0400 Message-Id: <200008170239.e7H2dW905096@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] Authorized devices? Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu D. C. Sessions wrote: >[DA] The 'keys' on the disk are the means for enforcing the requirement for the >appropriate player. If you don't have one of the players that matches the >key on the disk, then it's not supposed to be an approved player and you >aren't supposed to play the content. > >Look, I'm arguing against conviction here. But I haven't seen the DVDCCA >position taken all the way (not that we know that this is their position) by >assuming that they're pursuing the idea that this is ALL about the player and >not about the disk at all. Several things point in that direction, including their >apparent indifference to the previous video-capture methods contrasted with >their every-last-drop determination wrt DeCSS. They really care >about the blasted players, and whatever line they take *will* be targeted to >maintaining their lock on the player manufacturers. So the DVDCCA is the judicial branch, the MPAA is the legislative branch, the user is forever known as the defendant, the Court system is the executive branch. Lovely. >-- >| Microsoft: "A reputation for releasing inferior software will make | >| it more difficult for a software vendor to induce customers to pay | >| for new products or new versions of existing products." | >+----------- D. C. & M. V. Sessions ----------+ 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 Wed Aug 16 23:24:02 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA11528 for dvd-discuss-outgoing; Wed, 16 Aug 2000 23:24:02 -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 XAA11524 for ; Wed, 16 Aug 2000 23:24:01 -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 XAA28545 for ; Wed, 16 Aug 2000 23:23:54 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id XAA10011; Wed, 16 Aug 2000 23:23:54 -0400 (EDT) Date: Wed, 16 Aug 2000 23:23:54 -0400 (EDT) Message-Id: <200008170323.XAA10011@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Authorized devices? In-Reply-To: <00081618225201.11502@frankenstein.lumbercartel.com> References: <00081519475500.10641@frankenstein.lumbercartel.com> <20000816210046.C7905@ramtop.demon.co.uk> <00081618225201.11502@frankenstein.lumbercartel.com> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu D. C. Sessions writes: > Look, I'm arguing against conviction here. But I haven't seen the > DVDCCA position taken all the way (not that we know that this is > their position) by assuming that they're pursuing the idea that > this is ALL about the player and not about the disk at all. > Several things point in that direction, including their apparent > indifference to the previous video-capture methods contrasted with > their every-last-drop determination wrt DeCSS. Not to mention their representative at one of the LOC panels, Dean Marks, explaining at great length that it's all about the players, and that the point of CSS is to allow them to impose licensing terms on player manufacturers. Most of the juicy bits are in my parts of the Thau/Taylor authority paper, and the warmed-over version which got posted as an LOC comment, but the whole thing is very much worth reading; the cryptome copy is at http://216.167.120.50/dmca-may-19.html What this boils down to is the argument that they've presented in court, and out of it, whenever the question of what counts as circumvention has come up: 1) The law says that if DeCSS "decrypts ... without the authority the authority of the copyright owner" 2) DeCSS decrypts 3) They didn't authorize it 4) It's circumvention, QED. *Of course* this begs the question of the scope of their authority, and how it is communicated, but they have nothing to gain from a consideration of either of those questions, and quite a bit to lose if it starts to expose cracks in the seemingly straightforward syllogism I've given. So, it's not in their interest to have the judge even consider those questions --- which is why their legal brief just says "it's circumvention" several times without elaborating, as if it isn't even open to debate, and then blows smoke about piracy to distract the reader while they wheel the elephant offstage. AFAICS, that's their argument, at least until their own words give us evidence of another one. rst From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 16 23:34:47 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA11628 for dvd-discuss-outgoing; Wed, 16 Aug 2000 23:34:47 -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 XAA11625 for ; Wed, 16 Aug 2000 23:34:46 -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 XAA29217 for ; Wed, 16 Aug 2000 23:34:40 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id XAA10070; Wed, 16 Aug 2000 23:34:38 -0400 (EDT) Date: Wed, 16 Aug 2000 23:34:38 -0400 (EDT) Message-Id: <200008170334.XAA10070@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Authorized devices? In-Reply-To: <200008170323.XAA10011@soggy-fibers.ai.mit.edu> References: <00081519475500.10641@frankenstein.lumbercartel.com> <20000816210046.C7905@ramtop.demon.co.uk> <00081618225201.11502@frankenstein.lumbercartel.com> <200008170323.XAA10011@soggy-fibers.ai.mit.edu> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu The typo demon strikes again! Robert S. Thau writes: > 1) The law says that if DeCSS "decrypts ... without the authority > the authority of the copyright owner", it's circumvention. ^^^^^^^^^^^^^^^^^^ > 2) DeCSS decrypts > 3) They didn't authorize it > 4) It's circumvention, QED. Whimper. Sigh. rst From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 17 00:13:30 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA11778 for dvd-discuss-outgoing; Thu, 17 Aug 2000 00:13:30 -0400 Received: from hotmail.com (f288.law9.hotmail.com [64.4.8.163]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id AAA11775 for ; Thu, 17 Aug 2000 00:13:29 -0400 Received: from mail pickup service by hotmail.com with Microsoft SMTPSVC; Wed, 16 Aug 2000 21:12:52 -0700 Received: from 4.54.37.216 by lw9fd.law9.hotmail.msn.com with HTTP; Thu, 17 Aug 2000 GMT X-Originating-IP: [4.54.37.216] From: "Harold Eaton" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Authorized devices? Date: Thu, 17 Aug 2000 00:12:51 EDT Mime-Version: 1.0 Content-Type: text/plain; format=flowed Message-ID: X-OriginalArrivalTime: 17 Aug 2000 04:12:52.0011 (UTC) FILETIME=[693F27B0:01C00801] Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu D. C. Sessions wrote: >No, the license is a file containing a hash code. License server software >allows checking out some number of licenses (as specified in the license >file) and the CAE software checks out licenses from the server. Once the >available license pool is exhausted (or there wasn't a valid license in the >first place) the software can't check out a license and won't run. > >IMHO *this* is the kind of TPM that 1201 is on its face meant to deal with >and, also IMHO, such an application of the law is reasonable. > >The application of 1201 by the entertainment distributors to maintain >control >of the channel is quite another matter. I think we all understand more-or-less how the software license-server scheme functions. We also well know that software vendors have not been quite so greedy and control-hungry as the MPAA. My point was that under your [DA] description, nothing would prevent the CAE vendor from deciding anew when/where the grant of authority was given in order to screw the customer. You say their TPM model equates possesing the legitimately purchased hash (license file) with the authority grant. But that is pretty darn equivalent to the legitimately purchased title key granting authority on DVD disks. If the MPAA can decide that other deals with third parties are *also* required to have authority then so could the CAE vendor. Thus paying 100k for the license file *and* renting their building is required to gain authority ("you have to make two purchases"). The fact that they haven't done this only shows that they aren't as stupid/greedy/afraid/dishonest as the MPAA. If the MPAA is right, the CAE vendors could do this! ________________________________________________________________________ Get Your Private, Free E-mail from MSN Hotmail at http://www.hotmail.com From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 17 02:54:05 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id CAA12790 for dvd-discuss-outgoing; Thu, 17 Aug 2000 02:54:05 -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 CAA12787 for ; Thu, 17 Aug 2000 02:54:02 -0400 Received: (from phil@localhost) by ramtop.demon.co.uk (8.9.3/8.9.3) id HAA10230 for dvd-discuss@eon.law.harvard.edu; Thu, 17 Aug 2000 07:48:23 +0100 Date: Thu, 17 Aug 2000 07:48:23 +0100 From: Phil Harrison To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Authorized devices? Message-ID: <20000817074822.A10201@ramtop.demon.co.uk> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <00081519475500.10641@frankenstein.lumbercartel.com> <20000816210046.C7905@ramtop.demon.co.uk> <00081618225201.11502@frankenstein.lumbercartel.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii Content-Disposition: inline User-Agent: Mutt/1.2.5i In-Reply-To: <00081618225201.11502@frankenstein.lumbercartel.com>; from dcs@mailhost.lumbercartel.com on Wed, Aug 16, 2000 at 06:15:58PM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Wed, Aug 16, 2000 at 06:15:58PM -0700, D. C. Sessions wrote: > On Wed, 16 Aug 2000, you wrote: > > On Tue, Aug 15, 2000 at 07:32:28PM -0700, D. C. Sessions wrote: > > > > [DA] CSS is the same system. The DVD itself is just an expensive coaster. > > > Legally, it confers absolutely nothing on the purchaser except ownership of > > > a shiny piece of plastic. Purchase of a DVD player made under DVDCCA > > > license, on the other hand, is a required step in the chain transferring > > > authority from the holder, through its agent the DVDCCA, through the player > > > manufacturer, to the consumer. > > > > > Not wishing to go over the arguments already posted to the list, if the > > encrypted DVD content is to be regarded as similar to the CAE software, then the > > title key is the equivalent of the software license file. The title key is what > > allows the content to be accessed. But the title key is on the DVD and the > > transaction to obtain it is the purchase of the DVD disk. > > > > If authority was being granted purely with the purchase of the player, then > > there would be no decryption keys on the disk at all. > > [DA] The 'keys' on the disk are the means for enforcing the requirement for the > appropriate player. If you don't have one of the players that matches the > key on the disk, then it's not supposed to be an approved player and you > aren't supposed to play the content. > But you are still granting authority to play when the consumer purchases the disk. When you buy a player, you have no guarantee that the keys for your player will be included on all future DVD's. Therefore authority is granted with the disk, not the player. -- Phil Harrison From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 17 09:32:58 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA15861 for dvd-discuss-outgoing; Thu, 17 Aug 2000 09:32:58 -0400 Received: from smtp04.primenet.com (smtp04.primenet.com [206.165.6.134]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id JAA15858 for ; Thu, 17 Aug 2000 09:32:56 -0400 Received: (from daemon@localhost) by smtp04.primenet.com (8.9.3/8.9.3) id GAA17131 for ; Thu, 17 Aug 2000 06:31:00 -0700 (MST) Received: from sessions.phx.primenet.com(206.132.239.114), claiming to be "heorot.lumbercartel.com" via SMTP by smtp04.primenet.com, id smtpdAAAiAaqoH; Thu Aug 17 06:30:47 2000 Received: from frankenstein.lumbercartel.com (IDENT:dcs@frankenstein.lumbercartel.com [192.168.6.2]) by heorot.lumbercartel.com (8.9.3/8.8.7) with SMTP id GAA22341 for ; Thu, 17 Aug 2000 06:32:24 -0700 From: "D. C. Sessions" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Authorized devices? Date: Thu, 17 Aug 2000 06:29:52 -0700 X-Mailer: KMail [version 1.0.29] Content-Type: text/plain References: <00081618225201.11502@frankenstein.lumbercartel.com> <20000817074822.A10201@ramtop.demon.co.uk> In-Reply-To: <20000817074822.A10201@ramtop.demon.co.uk> MIME-Version: 1.0 Message-Id: <00081706322400.12450@frankenstein.lumbercartel.com> Content-Transfer-Encoding: 8bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Wed, 16 Aug 2000, Phil Harrison wrote: > On Wed, Aug 16, 2000 at 06:15:58PM -0700, D. C. Sessions wrote: > > On Wed, 16 Aug 2000, you wrote: > > > On Tue, Aug 15, 2000 at 07:32:28PM -0700, D. C. Sessions wrote: > > > > > > [DA] CSS is the same system. The DVD itself is just an expensive coaster. > > > > Legally, it confers absolutely nothing on the purchaser except ownership of > > > > a shiny piece of plastic. Purchase of a DVD player made under DVDCCA > > > > license, on the other hand, is a required step in the chain transferring > > > > authority from the holder, through its agent the DVDCCA, through the player > > > > manufacturer, to the consumer. > > > > > > > Not wishing to go over the arguments already posted to the list, if the > > > encrypted DVD content is to be regarded as similar to the CAE software, then the > > > title key is the equivalent of the software license file. The title key is what > > > allows the content to be accessed. But the title key is on the DVD and the > > > transaction to obtain it is the purchase of the DVD disk. > > > > > > If authority was being granted purely with the purchase of the player, then > > > there would be no decryption keys on the disk at all. > > > > [DA] The 'keys' on the disk are the means for enforcing the requirement for the > > appropriate player. If you don't have one of the players that matches the > > key on the disk, then it's not supposed to be an approved player and you > > aren't supposed to play the content. > > > But you are still granting authority to play when the consumer purchases the > disk. When you buy a player, you have no guarantee that the keys for your player > will be included on all future DVD's. Therefore authority is granted with the > disk, not the player. I give up. I can't think of any more wiggles to defend this ludicrous position, which is perhaps good. Hope someone else at least tries in case I missed something, because dollars to doughnut holes this is where the Plaintiffs want to go. -- | Microsoft: "A reputation for releasing inferior software will make | | it more difficult for a software vendor to induce customers to pay | | for new products or new versions of existing products." | +----------- D. C. & M. V. Sessions ----------+ From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 17 09:39:56 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA16001 for dvd-discuss-outgoing; Thu, 17 Aug 2000 09:39:56 -0400 Received: from charon.cargill.com (charon.cargill.com [167.136.225.225]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id JAA15998 for ; Thu, 17 Aug 2000 09:39:47 -0400 Received: from hermes.cargill.com (hermes.cargill.com [167.136.226.140]) by charon.cargill.com (8.8.8/8.8.8) with ESMTP id IAA01649 for ; Thu, 17 Aug 2000 08:39:41 -0500 (CDT) Received: from cdmpls02m.cdpoly.cargill.com (cdmpls02m.cdpoly.cargill.com [10.25.1.21]) by hermes.cargill.com (8.8.8/8.8.8) with ESMTP id IAA18646 for ; Thu, 17 Aug 2000 08:39:41 -0500 (CDT) Received: by cdmpls02m.cdpoly.cargill.com with Internet Mail Service (5.5.2448.0) id ; Thu, 17 Aug 2000 08:38:25 -0500 Message-ID: From: "Kroll, Dave" To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] Encrypting books Date: Thu, 17 Aug 2000 08:38:25 -0500 MIME-Version: 1.0 X-Mailer: Internet Mail Service (5.5.2448.0) 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 >Now with CD and the projected enhancements of DVD audio (...OK does >anybody know what those are), Here is a review of a DVD-A player: http://www.mercurycenter.com/svtech/columns/testdrive/docs/ml073000.htm ... "Next, I went to a local electronics store with a fancy home theater listening room, clutching my Steely Dan CD. I got a friendly sales guy to play both versions on the store's Panasonic A7D, properly connected with analog cables to a high-end pre-amplifier, amplifier and surround speakers that would together cost about $2,200. I now noticed some difference. When a brief burst of trumpets punctuated a lyric, the horn section clearly performed from behind my head in DVD-Audio, thanks to surround recording. But the CD version also sounded great to me. The sales guy, who might have sharper ears than I or might just feel compelled to defend new technology, said the DVD-Audio sounded ``brighter'' and ``cleaner'' to him, with noticeably less hiss than the CD. My conclusion: You'll need to spend a lot of money on receivers and speakers, at least $1,500, and position them and yourself perfectly in a room to get a significant benefit from DVD-Audio...". David Kroll QA Coordinator 612-882-6452 Dave_Kroll@cdpoly.com -----Original Message----- From: Michael.A.Rolenz@aero.org [SMTP:Michael.A.Rolenz@aero.org] Sent: Wednesday, August 16, 2000 7:11 PM To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Encrypting books Yes. Read the Time Warner comments on the DMCA in the latest go round of comments. THis is the point that they are omitting. They are concentrating we gotta be protected now...but missing the ...OK in exchange for protection today YOU will give up XXX tomorrow...actually I've been pondering the reply to them [and how to rework the comments I didn't get in before the deadline to have some effect; I don't know if they will automatically submit them as reply comments since I missed the deadline by 8 hrs.] What I have been pondering is the fact that the media is different in the 20th and 21st century than in previous centuries. Before, books, posters, pamplets, sheet music - printed material were self contained. THere NEVER was any question of what happens when copyrights expire. The media preserved the work and was visually accessible to anyone who wanted to make a copy. Not so with 20th century media. Films require a projector (OK look at the sizes 8mm, super8, 35mm, 70mm, 16mm, cinarama, cinamascope, smellovision, shockovision, 3D etc), Records (78rpm, 33 rpm, 45 rpm), Video (3/4", BetaMax, VHS), Magnetic Tape (1/4" reel to real, 1/2" real to real, 4 track, 8 track, cassette, ) CD (one format.!) DVD (ONE format) DVD Audio (one format). Each of these requires additonal hardware beyond the copyrighted material for access. THe copyrighted work is no longer self contained (even source code can be printed out on a listing..albeit long..look at PGP). Previously copyrighted material could pass into the public domain from even a single copy (safety in numbers) but what have we with the DMCA. Without knowledge ofthe access scheme NOTHING can pass into the public domain. I didn't realize it before a few weeks ago but I've spent a lot of money buying 8 track tapes, cassette tapes, records, CDs , a few reel to reel, a couple of 4 tracks of the same recordings over the last 30yrs! Now with CD and the projected enhancements of DVD audio (...OK does anybody know what those are), they can't give me a "superior" media or a more convenient media any more as a sales pitch. CD sized objects are more convenient than records, cassettes and certainly 8 track. It doesn't break down mechanically as does magnetic tapes. What better media can they sell me? NONE. The twist here is that now they make it illegal to reverse engineer. With strong encryption and access controls they can keep things out of the public domain indefinitly....They have reached the limits of what is needed or desirable for media....one less area of C O N T R O L ...to maintain control they have to go after the players... One interesting point to consider is that some of the studies done for cable TV showed that people were not interesting in better performance but more programming. Once the SNR got above a certain point, they really didn't care about quality. Unless you have the device to exploit it it's all wasted...BTW as for CDs....sample rate 48ksps. Nyquist rate is 44ksps. 10% sampling overhead...acceptable 20-40% would have been better IMHO. Sample interpolation = 8-16x with todays players: acceptable roll off of reconstruction filter. Assuming studio electronics is better than my stereo system, the degradation is in my system. THD of amplifiers is low (high end 70's discrete technology). Speakers = 12" 70's Utahs w/o crossover to tweeta...not that it really matters, my right ear can't hear well at 5kcps....I don't see much point to audio DVDs Well to emphasize this point a skunk has walked past my house and the air stinks, (No I'm not jokingIn LA county it is illegal to feed skunks and I can understand the reason...I've had more dealings with skunks in the last year)...Time Warner...Warner Bros...Pepe Le Pue...that's one of their cartoon charactes..seems apropos... "Harold Eaton" @eon.law.harvard.edu on 08/14/2000 01:44:42 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] Encrypting books Sham Gardner wrote: >IIRC the DMCA says "effectively controls access to a *copyrighted* work" >(emphasis mine). Surely if the work is public domain it doens't apply? Although it doesn't say this explicitly, it IS implied. But the problem here is that the *same* access control TPM is being used for copyrighted and public domain works, so it is illegal to traffic in "circumvention devices" even though they can be used to gain access to non-copyrighted works. In 200 years (I'm anticipating another couple rounds of copyright term extensions), the movie "You've got mail" will no longer be copyrighted, but it (old copies and re-releases, if any) will *still* be protected by the TPM because the same TPM is used to protect recent copyrighted works. Under the P's reading of this law, their copyright rights are (indirectly) absolute, unlimited, and perpetual. ________________________________________________________________________ Get Your Private, Free E-mail from MSN Hotmail at http://www.hotmail.com From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 17 10:09:21 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA16371 for dvd-discuss-outgoing; Thu, 17 Aug 2000 10:09:21 -0400 Received: from imo-r18.mx.aol.com (imo-r18.mx.aol.com [152.163.225.72]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id KAA16368 for ; Thu, 17 Aug 2000 10:09:20 -0400 From: VTLAW1@aol.com Received: from VTLAW1@aol.com by imo-r18.mx.aol.com (mail_out_v27.12.) id x.7f.87feac6 (3845) for ; Thu, 17 Aug 2000 10:08:11 -0400 (EDT) Message-ID: <7f.87feac6.26cd4bcb@aol.com> Date: Thu, 17 Aug 2000 10:08:11 EDT Subject: Re: [dvd-discuss] Authorized devices? 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 112 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Can anyone help me to exit this LISTSERV? I've tried the prescribed method but it doesn't seem to work. Thanks. From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 17 10:31:51 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA16595 for dvd-discuss-outgoing; Thu, 17 Aug 2000 10:31:51 -0400 Received: from ghost.bibliotrack.com (root@adsl-151-202-34-10.bellatlantic.net [151.202.34.10]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id KAA16592 for ; Thu, 17 Aug 2000 10:31:48 -0400 Received: from seltzerw ([204.243.92.112]) by ghost.bibliotrack.com (8.9.3/8.9.3) with ESMTP id KAA24740 for ; Thu, 17 Aug 2000 10:20:43 -0400 Message-Id: <4.2.2.20000817094751.00e6dc60@pop.bellatlantic.net> X-Sender: wseltzer@pop.bellatlantic.net X-Mailer: QUALCOMM Windows Eudora Pro Version 4.2.2 Date: Thu, 17 Aug 2000 10:31:15 -0400 To: dvd-discuss@eon.law.harvard.edu From: Wendy Seltzer Subject: Re: [dvd-discuss] Encrypting books 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 05:11 PM 8/16/00 -0700, Michael.A.Rolenz@aero.org wrote: >Yes. Read the Time Warner comments on the DMCA in the latest go round of >comments. THis is the point that they are omitting. They are concentrating >we gotta be protected now...but missing the ...OK in exchange for >protection today YOU will give up XXX tomorrow...actually I've been >pondering the reply to them [and how to rework the comments I didn't get in >before the deadline to have some effect; I don't know if they will >automatically submit them as reply comments since I missed the deadline by >8 hrs.] Unless you write/call to ask, I would not assume they will automatically consider your submission as a reply comment. It sounds like a good point to inform the hearings. In trying to replicate one feature, relative irreproducibility, of older media with digital media through access controls, we run the risk of losing much more valuable features of public accessibility of copyrighted works. >What I have been pondering is the fact that the media is different >in the 20th and 21st century than in previous centuries. Before, books, >posters, pamplets, sheet music - printed material were self contained. >THere NEVER was any question of what happens when copyrights expire. The >media preserved the work and was visually accessible to anyone who wanted >to make a copy. Another tack: Fair use and personal private use/copying are defaults of old media. We've never needed to justify them very strongly because it has been impossible to prevent someone from quoting a passage from a book or reusing a snippet of music. (Technologically, control has not been possible, legally, it has been impractical unless the use is large-scale or public.) In Betamax, the Court preserved these defaults against pressure to outlaw the technologies of fair use for television broadcasts. While some aspects of fair use may have developed to justify variance from perfect enforcement of copyright, the Court affirmed its distinct Constitutional value even where perfect compliance was enforceable. Now, as we design new media in which neither relative irreproducibility nor fair use is a given, we need to follow those guidelines to mandate _imperfect_ enforcement. That was as much a "feature" of old media as difficulty of reproduction, and the more important one to preserve, constitutionally, in new media. --Wendy Wendy Seltzer -- wendy@seltzer.com Fellow, Berkman Center for Internet & Society at Harvard Law School http://cyber.law.harvard.edu/seltzer.html From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 17 13:53:17 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA21944 for dvd-discuss-outgoing; Thu, 17 Aug 2000 13:53:17 -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 NAA21941 for ; Thu, 17 Aug 2000 13:53:15 -0400 Received: from jy01 (user-2inigem.dialup.mindspring.com [165.121.65.214]) by blount.mail.mindspring.net (8.9.3/8.8.5) with SMTP id NAA13955 for ; Thu, 17 Aug 2000 13:53:02 -0400 (EDT) Message-Id: <200008171753.NAA13955@blount.mail.mindspring.net> X-Sender: jya@pop.pipeline.com X-Mailer: QUALCOMM Windows Eudora Pro Version 4.0 Date: Thu, 17 Aug 2000 13:47:09 -0400 To: dvd-discuss@eon.law.harvard.edu From: John Young Subject: [dvd-discuss] Kaplan Decision for MPAA In-Reply-To: <20000811060959.14254.qmail@web123.yahoomail.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 Kaplan finds for MPAA in 93-page decision: http://www.nysd.uscourts.gov/courtweb/pdf/D02NYSC/00-08117.PDF Quote: p. 89 VI. Conclusion In the final analysis, the dispute between these parties is simply put if not necessarily simply resolved. Plaintiffs have invested huge sums over the years in producing motion pictures in reliance upon a legal framework that, through the law of copyright, has ensured that they will have the exclusive right to copy and distribute those motion pictures for economic gain. They contend that the advent of new technology should not alter this long established structure. Defendants, on the other hand, are adherents of a movement that believes that information should be available without charge to anyone clever enough to break into the computer systems or data storage media in which it is located. Less radically, they have raised a legitimate concern about the possible impact on traditional fair use of access control measures in the digital era. Each side is entitled to its views. In our society, however, clashes of competing interests like this are resolved by Congress. For now, at least, Congress has resolved this clash in the DMCA and in plaintiffs’ favor. Given the peculiar characteristics of computer programs for circumventing encryption and other access control measures, the DMCA as applied to posting and linking here does not contravene the First Amendment. Accordingly, plaintiffs are entitled to appropriate injunctive and declaratory relief. SO ORDERED. Dated: August 17, 2000 _______________________________________ Lewis A. Kaplan United States District Judge End Quote From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 17 14:19:18 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA22573 for dvd-discuss-outgoing; Thu, 17 Aug 2000 14:19:18 -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 OAA22569 for ; Thu, 17 Aug 2000 14:19:11 -0400 Received: from localhost (localhost [[UNIX: localhost]]) by rjmconsulting.com (8.9.3/8.9.3) id LAA24476 for dvd-discuss@eon.law.harvard.edu; Thu, 17 Aug 2000 11:30:26 -0700 From: Russell (James) Miller To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Kaplan Decision for MPAA Date: Thu, 17 Aug 2000 11:29:35 -0700 X-Mailer: KMail [version 1.0.29.2] Content-Type: text/plain References: <200008171753.NAA13955@blount.mail.mindspring.net> In-Reply-To: <200008171753.NAA13955@blount.mail.mindspring.net> MIME-Version: 1.0 Message-Id: <0008171130231F.04283@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 Can't say that was unexpected, Though his bias shows clearly in even the small bit you reproduced here. What's the next step? Anyone? --james (Russell) On Thu, 17 Aug 2000, you wrote: > Kaplan finds for MPAA in 93-page decision: > > http://www.nysd.uscourts.gov/courtweb/pdf/D02NYSC/00-08117.PDF > > Quote: > > p. 89 > > VI. Conclusion > > In the final analysis, the dispute between these parties is > simply put if not necessarily simply resolved. > > Plaintiffs have invested huge sums over the years in producing > motion pictures in reliance upon a legal framework that, through > the law of copyright, has ensured that they will have the exclusive > right to copy and distribute those motion pictures for economic > gain. They contend that the advent of new technology should not > alter this long established structure. > > Defendants, on the other hand, are adherents of a movement that > believes that information should be available without charge to > anyone clever enough to break into the computer systems or data > storage media in which it is located. Less radically, they have > raised a legitimate concern about the possible impact on > traditional fair use of access control measures in the digital era. > > Each side is entitled to its views. In our society, however, > clashes of competing interests like this are resolved by Congress. > For now, at least, Congress has resolved this clash in the DMCA > and in plaintiffs’ favor. Given the peculiar characteristics of > computer programs for circumventing encryption and other access > control measures, the DMCA as applied to posting and linking here > does not contravene the First Amendment. Accordingly, plaintiffs > are entitled to appropriate injunctive and declaratory relief. > > SO ORDERED. > > Dated: August 17, 2000 > _______________________________________ > Lewis A. Kaplan > United States District Judge > > End Quote -- Russell (James) 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 Aug 17 14:31:59 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA22786 for dvd-discuss-outgoing; Thu, 17 Aug 2000 14:31:59 -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 OAA22783 for ; Thu, 17 Aug 2000 14:31:56 -0400 Received: from travel-net.com (trj95.travel-net.com [207.176.160.95]) by mail.travel-net.com (8.9.3/8.9.3) with ESMTP id NAA31813 for ; Thu, 17 Aug 2000 13:31:21 -0400 Message-ID: <399C2F93.E9A46665@travel-net.com> Date: Thu, 17 Aug 2000 14:31:47 -0400 From: Dan Steinberg 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 Decision for MPAA References: <200008171753.NAA13955@blount.mail.mindspring.net> <0008171130231F.04283@www.rjmconsulting.com> Content-Type: text/plain; charset=iso-8859-1 Content-Transfer-Encoding: 8bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu maybe we read the entire decision and then think about the next step(s)? maybe find out what the defense team thinks we should do? (halfway through the text already and making copious notes...) Dan "Russell (James) Miller" wrote: > Can't say that was unexpected, Though his bias shows clearly in even the small > bit you reproduced here. > > What's the next step? Anyone? > > --james (Russell) > > On Thu, 17 Aug 2000, you wrote: > > Kaplan finds for MPAA in 93-page decision: > > > > http://www.nysd.uscourts.gov/courtweb/pdf/D02NYSC/00-08117.PDF > > > > Quote: > > > > p. 89 > > > > VI. Conclusion > > > > In the final analysis, the dispute between these parties is > > simply put if not necessarily simply resolved. > > > > Plaintiffs have invested huge sums over the years in producing > > motion pictures in reliance upon a legal framework that, through > > the law of copyright, has ensured that they will have the exclusive > > right to copy and distribute those motion pictures for economic > > gain. They contend that the advent of new technology should not > > alter this long established structure. > > > > Defendants, on the other hand, are adherents of a movement that > > believes that information should be available without charge to > > anyone clever enough to break into the computer systems or data > > storage media in which it is located. Less radically, they have > > raised a legitimate concern about the possible impact on > > traditional fair use of access control measures in the digital era. > > > > Each side is entitled to its views. In our society, however, > > clashes of competing interests like this are resolved by Congress. > > For now, at least, Congress has resolved this clash in the DMCA > > and in plaintiffs’ favor. Given the peculiar characteristics of > > computer programs for circumventing encryption and other access > > control measures, the DMCA as applied to posting and linking here > > does not contravene the First Amendment. Accordingly, plaintiffs > > are entitled to appropriate injunctive and declaratory relief. > > > > SO ORDERED. > > > > Dated: August 17, 2000 > > _______________________________________ > > Lewis A. Kaplan > > United States District Judge > > > > End Quote > -- > Russell (James) 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 Aug 17 14:51:39 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA23751 for dvd-discuss-outgoing; Thu, 17 Aug 2000 14:51:39 -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 OAA23748 for ; Thu, 17 Aug 2000 14:51:37 -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 NAA25168 for ; Thu, 17 Aug 2000 13:51:06 -0500 Message-ID: <399C3300.E53924A8@mninter.net> Date: Thu, 17 Aug 2000 13:46:24 -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 Decision for MPAA References: <200008171753.NAA13955@blount.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 Ugh. I am flabbergasted. After that specious junk the MPAA called a legal brief and the judge sides with them? Oh, at least he didn't charge Corley with the movie studio's legal fees. -- moseng@mninter.net I use PGP 6.5.3 -- http://www.underwhelm.org/pgp From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 17 15:01:52 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA23906 for dvd-discuss-outgoing; Thu, 17 Aug 2000 15:01:52 -0400 Received: from ghost.bibliotrack.com (root@adsl-151-202-34-10.bellatlantic.net [151.202.34.10]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA23903; Thu, 17 Aug 2000 15:01:47 -0400 Received: from seltzerw ([204.243.92.112]) by ghost.bibliotrack.com (8.9.3/8.9.3) with ESMTP id OAA24942; Thu, 17 Aug 2000 14:50:22 -0400 Message-Id: <4.2.2.20000817135158.00e6ef00@seltzer.com> X-Sender: wendy@seltzer.com (Unverified) X-Mailer: QUALCOMM Windows Eudora Pro Version 4.2.2 Date: Thu, 17 Aug 2000 15:00:55 -0400 To: dvd-announce@eon.law.harvard.edu From: Wendy Seltzer Subject: [dvd-discuss] Kaplan Enjoins 2600 from Posting and Linking Cc: dvd-discuss@eon.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 Not unexpectedly, Judge Kaplan has ruled against 2600. Impressions from an initial skim of the decision: Kaplan gives short shrift to the expressive content of computer code, finding the anticircumvention provisions of 1201 to be a valid content-neutral restriction on speech. He invokes an odd "disease" metaphor for the propagation of decryption tools, to find 1201 necessary to the important governmental interest of protecting copyright. Kaplan further enjoins linking to DeCSS by pulling hyperlinking within the 1201 prohibition on "offering" circumvention technologies. He appears relatively unconcerned with the restrictions on speech a hyperlinking ban entails. The opinion Final judgment and order (Mirrored at and ) By this evening, I hope to have a line-numbered text version of the opinion posted to facilitate discussion. As always, background documents are at . On to the appeal. --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 Aug 17 15:18:52 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA24205 for dvd-discuss-outgoing; Thu, 17 Aug 2000 15:18:52 -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 PAA24195 for ; Thu, 17 Aug 2000 15:18:52 -0400 Received: from 207-172-50-131.s385.tnt7.lnhva.md.dialup.rcn.com ([207.172.50.131]) by smtp03.mrf.mail.rcn.net with esmtp (Exim 3.15 #2) id 13PVBe-0001VK-00 for dvd-discuss@eon.law.harvard.edu; Thu, 17 Aug 2000 15:18:46 -0400 Date: Thu, 17 Aug 2000 15:18:40 EDT From: Jeremy Erwin To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Kaplan Enjoins 2600 from Posting and Linking 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 Thu, 17 Aug 2000, Wendy Seltzer wrote: > > Final judgment and order > > > (Mirrored at and > ) > > By this evening, I hope to have a line-numbered text version of the > opinion > posted to facilitate discussion. > As always, background documents are at > . > > On to the appeal. I was reading the order, and came across the following statements: (3)(c) "DeCSS" means any computer program, file or device that may be used to decrypt or unscramble the contents of DVDs that are protected, or otherwise to circumvent the protection afforded, by CSS and that permits the copying of the contents or any portion thereof. and [Defendents et al. are enjoined from] (1)(b) posting on any Internet web site, or in any other way manufacturing, importing or offering to the public, providing, or otherwise trafficking in any technology, product, service, device, component, or part thereof, that: [constitutes DeCSS] taken together, those would seem to restrict both the LiViD code and t-shirts, since the code snippets reproduced on the shirts, constitute a part of the LiVid code, and the LiVid code can be compiled into a "circumvention" device. Bought and Paid for, I suppose. Jeremy Erwin From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 17 15:24:45 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA24631 for dvd-discuss-outgoing; Thu, 17 Aug 2000 15:24:45 -0400 Received: from localhost.localdomain (root@mail4.registeredsite.com [209.35.159.16]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA24628 for ; Thu, 17 Aug 2000 15:24:42 -0400 Received: from mail.nearside.com (mail.nearside.com [216.25.52.95]) by localhost.localdomain (8.9.3/8.9.3) with ESMTP id OAA20422 for ; Thu, 17 Aug 2000 14:20:35 -0400 Date: Thu, 17 Aug 2000 15:25:42 -0400 Message-Id: <200008171525.AA1223229732@mail.nearside.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii From: "Jed Borod" X-Sender: To: Subject: Re: [dvd-discuss] Kaplan Enjoins 2600 from Posting and Linking X-Mailer: Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu >taken together, those would seem to restrict both the LiViD code and >t-shirts, since the code snippets reproduced on the shirts, constitute a >part of the LiVid code, and the LiVid code can be compiled into a >"circumvention" device. I noticed this too. I wonder how far Kaplan or the MPAA would be willing to go - would someone reading the DeCSS code be illegal? What about a recording of someone reading the code? From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 17 15:28:47 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA24854 for dvd-discuss-outgoing; Thu, 17 Aug 2000 15:28:47 -0400 Received: from mail2.registeredsite.com (root@mail2.registeredsite.com [209.35.159.13]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA24850 for ; Thu, 17 Aug 2000 15:28:45 -0400 Received: from mail.nearside.com (mail.nearside.com [216.25.52.95]) by mail2.registeredsite.com (8.9.3/8.9.3) with ESMTP id OAA01614 for ; Thu, 17 Aug 2000 14:26:44 -0400 Date: Thu, 17 Aug 2000 15:29:41 -0400 Message-Id: <200008171529.AA949354550@mail.nearside.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii From: "Jed Borod" X-Sender: To: Subject: Re: [dvd-discuss] Kaplan Enjoins 2600 from Posting and Linking X-Mailer: Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Also extremely strange in the opinion. page 29, regarding downloading of a 650 mb file "Hence, transmission times ranging from three to twenty minutes to six hours or more for a feature film are readily achievable..." I had thought that Kaplan now understood the ridiculousness of saying "seven minutes," but apparently not. He's gone even further, suggesting that three minutes is readily available? From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 17 15:35:05 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA24913 for dvd-discuss-outgoing; Thu, 17 Aug 2000 15:35:05 -0400 Received: from mercury.clearway.com (c100.clearway.com [199.103.231.100]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA24910 for ; Thu, 17 Aug 2000 15:35:04 -0400 Received: by c100.clearway.com with Internet Mail Service (5.5.2650.21) id ; Thu, 17 Aug 2000 15:38:26 -0400 Message-ID: From: Leland Ray To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] Kaplan Decision for MPAA Date: Thu, 17 Aug 2000 15:38:18 -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 Let me see if I remember my CourtTV law class properly... Probably, whether or not attorney's fees are sought is in a post trial motion. Also look for the motion that asks Kaplan to reconsider (which he will deny), because that is a prelude to an appeal. In a jury trial, it makes more sense because the motion would be to set aside the jury verdict. There will be an additional hearing to decide actual measures, damages, injunctions, motions etc. In order to appeal, you have to post a bond. That means a final amount of all damages has to be decided, the bond is some percentage of the judgment. Since Corley doesn't have a lot of money, and Plaintiffs did not seek large monetary damages, it should not be headline breaking. A previous poster suggested that the maximum statutory fine is not extraordinarily high, but attorney's fees might be a problem. Sometimes fees are capped as a percentage of damages, but it doesn't have to be that way -- Clint Eastwood was hit with over $200,000 in fees from a matter that didn't even go to court. The lawyers who sued the tobacco companies were at one point going to collect $17,000/hr(*) for their services (of course, that was a rather high damage award). (*) Yes, this is not a typo. -----Original Message----- From: Chris Moseng [mailto:moseng@mninter.net] Sent: Thursday, August 17, 2000 2:46 PM To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Kaplan Decision for MPAA Ugh. I am flabbergasted. After that specious junk the MPAA called a legal brief and the judge sides with them? Oh, at least he didn't charge Corley with the movie studio's legal fees. -- moseng@mninter.net I use PGP 6.5.3 -- http://www.underwhelm.org/pgp From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 17 15:37:06 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA24997 for dvd-discuss-outgoing; Thu, 17 Aug 2000 15:37:06 -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 PAA24994 for ; Thu, 17 Aug 2000 15:37:05 -0400 Received: from 209-122-248-59.s313.tnt8.lnhva.md.dialup.rcn.com ([209.122.248.59]) by smtp01.mrf.mail.rcn.net with esmtp (Exim 3.15 #2) id 13PVTB-0003gl-00 for dvd-discuss@eon.law.harvard.edu; Thu, 17 Aug 2000 15:36:53 -0400 Date: Thu, 17 Aug 2000 15:36:47 EDT From: Jeremy Erwin To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Kaplan Enjoins 2600 from Posting and Linking 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 Thu, 17 Aug 2000, Jed Borod wrote: > Date: Thu, 17 Aug 2000 15:29:41 -0400 > To: > From: "Jed Borod" > Reply-To: dvd-discuss@eon.law.harvard.edu > Subject: Re: [dvd-discuss] Kaplan Enjoins 2600 from Posting and Linking > > Also extremely strange in the opinion. page 29, regarding downloading of > a 650 mb file > > "Hence, transmission times ranging from three to twenty minutes to six > hours or more for a feature film are readily achievable..." > > I had thought that Kaplan now understood the ridiculousness of saying > "seven minutes," but apparently not. He's gone even further, suggesting > that three minutes is readily available? > According to my TI85, that's 28.8 Mb/s 650*1024*8/(180*1024) From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 17 15:37:34 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA25019 for dvd-discuss-outgoing; Thu, 17 Aug 2000 15:37:34 -0400 Received: from smtp03.primenet.com (smtp03.primenet.com [206.165.6.133]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA25012 for ; Thu, 17 Aug 2000 15:37:28 -0400 Received: (from daemon@localhost) by smtp03.primenet.com (8.9.3/8.9.3) id MAA04773 for ; Thu, 17 Aug 2000 12:36:21 -0700 (MST) Received: from sessions.phx.primenet.com(206.132.239.114), claiming to be "heorot.lumbercartel.com" via SMTP by smtp03.primenet.com, id smtpdAAAu0aqmj; Thu Aug 17 12:36:11 2000 Received: from frankenstein.lumbercartel.com (IDENT:dcs@frankenstein.lumbercartel.com [192.168.6.2]) by heorot.lumbercartel.com (8.9.3/8.8.7) with SMTP id MAA23695 for ; Thu, 17 Aug 2000 12:37:05 -0700 From: "D. C. Sessions" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Kaplan Decision for MPAA Date: Thu, 17 Aug 2000 12:34:56 -0700 X-Mailer: KMail [version 1.0.29] Content-Type: text/plain References: <200008171753.NAA13955@blount.mail.mindspring.net> <399C3300.E53924A8@mninter.net> In-Reply-To: <399C3300.E53924A8@mninter.net> MIME-Version: 1.0 Message-Id: <00081712370400.13327@frankenstein.lumbercartel.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, 17 Aug 2000, Chris Moseng wrote: > Ugh. I am flabbergasted. After that specious junk the MPAA called a > legal brief and the judge sides with them? Not exactly. Considering that the Plaintiffs' brief didn't contest the Defense's points, it really read as though the Court had written a brief for the Plaintiffs. -- | Microsoft: "A reputation for releasing inferior software will make | | it more difficult for a software vendor to induce customers to pay | | for new products or new versions of existing products." | +----------- D. C. & M. V. Sessions ----------+ From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 17 15:37:41 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA25026 for dvd-discuss-outgoing; Thu, 17 Aug 2000 15:37:41 -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 PAA25018 for ; Thu, 17 Aug 2000 15:37:34 -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 OAA32000 for ; Thu, 17 Aug 2000 14:37:02 -0500 Message-ID: <399C3DA9.8761136F@mninter.net> Date: Thu, 17 Aug 2000 14:31:53 -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] Kaplan Decision for MPAA References: <200008171753.NAA13955@blount.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 >From slashdot, an interesting point: 1st Amendment musing (Score:1) by BrotherPope (master@mari.net) on 13:05 17 August 2000 CST (#135) (User #8102 Info) I continue to be amazed by Kaplan's reliance on the content of written words, from the various 'fuck the lawyers' rants on DeCSS mirrors to the articles in the print version of 2600 itself. I wonder just how far the First Amendment (and related case law) should block this kind of consideration. By exercising its 1st amendment right to publish pretty much whatever the hell it wants, it seems that 2600 has earned Kaplan's ire. Pages 15 to 17 of the opinion make mention of some articles, and I'm wondering how this is relevant if he's only exercising his rights. In court, Goldstein put these articles into context, but that's conspicuously absent here. Without any evidence to the contrary presented, how can Kaplan get away with passing this kind of judgement on 2600's content? Just curious. --- What effect did 2600's devil-may-care speech practices before the trial have on the judge's decision, and how can the defense use this to their advatage? 2600 publishes things that corporations don't like to hear--with full constitutional support--until now. Lookout, John Young, they'll soon pass the Digital Milennium Intelligence Agency act, prohibiting trafficking in devices that permit you to talk bad about the CIA--and Kaplan will have you hanged. -- moseng@mninter.net I use PGP 6.5.3 -- http://www.underwhelm.org/pgp From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 17 15:50:00 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA25727 for dvd-discuss-outgoing; Thu, 17 Aug 2000 15:50:00 -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 PAA25724 for ; Thu, 17 Aug 2000 15:49:59 -0400 Received: by chiara.elte.hu (Postfix, from userid 17806) id 5B7237E1B5; Thu, 17 Aug 2000 21:49:49 +0200 (CEST) Date: Thu, 17 Aug 2000 21:59:02 +0200 (CEST) From: Ingo Molnar To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Kaplan Enjoins 2600 from Posting and Linking 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, 17 Aug 2000, Jeremy Erwin wrote: > > "Hence, transmission times ranging from three to twenty minutes to six > > hours or more for a feature film are readily achievable..." > According to my TI85, that's 28.8 Mb/s > > 650*1024*8/(180*1024) maybe what he wanted to calculate is 28.8 kbit/sec ... A 'clearly erroneous finding' this is. Ingo From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 17 15:51:07 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA25835 for dvd-discuss-outgoing; Thu, 17 Aug 2000 15:51:07 -0400 Received: from thud.reric.net (sepp-host210.dsl.visi.com [209.98.241.210]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA25830 for ; Thu, 17 Aug 2000 15:51:05 -0400 Received: (from eds@localhost) by thud.reric.net (8.9.3/8.8.7) id OAA15150 for dvd-discuss@eon.law.harvard.edu; Thu, 17 Aug 2000 14:50:58 -0500 Date: Thu, 17 Aug 2000 14:50:58 -0500 From: Eric Seppanen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Kaplan Enjoins 2600 from Posting and Linking Message-ID: <20000817145058.A15049@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 jerwin@osf1.gmu.edu on Thu, Aug 17, 2000 at 03:18:40PM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, Aug 17, 2000 at 03:18:40PM -0400, Jeremy Erwin wrote: > > I was reading the order, and came across the following statements: > > (3)(c) "DeCSS" means any computer program, file or device that may be used > to decrypt or unscramble the contents of DVDs that are protected, or > otherwise to circumvent the protection afforded, by CSS and that permits > the copying of the contents or any portion thereof. > and > [Defendents et al. are enjoined from] Now this really pisses me off. The fact that the temporary injunction enjoins "any computer program ... that MAY be used to decrypt" (in other words, _any_ unlicensed implementation, including LiViD) has been known on this list for months and months. Why didn't the defense dispute this wording? Now the MPAA has an avenue to go around bulling anyone offering the LiVid project files, simply by making an argument that they're operating in conjunction with 2600, and 2600 has been enjoined from posting _any_ CSS code, not just the infamous DeCSS.exe. The reason I'm pissed off is because the whole trial revolved around DeCSS.exe, and the plaintiffs basically got LiViD enjoined for free because nobody bothered to dispute the stupid wording of the injunction. Eric From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 17 16:00:14 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA26498 for dvd-discuss-outgoing; Thu, 17 Aug 2000 16:00:14 -0400 Received: from smtp03.primenet.com (smtp03.primenet.com [206.165.6.133]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id QAA26495 for ; Thu, 17 Aug 2000 16:00:08 -0400 Received: (from daemon@localhost) by smtp03.primenet.com (8.9.3/8.9.3) id MAA13839 for ; Thu, 17 Aug 2000 12:59:01 -0700 (MST) Received: from sessions.phx.primenet.com(206.132.239.114), claiming to be "heorot.lumbercartel.com" via SMTP by smtp03.primenet.com, id smtpdAAAKtaq6A; Thu Aug 17 12:58:53 2000 Received: from frankenstein.lumbercartel.com (IDENT:dcs@frankenstein.lumbercartel.com [192.168.6.2]) by heorot.lumbercartel.com (8.9.3/8.8.7) with SMTP id MAA23813 for ; Thu, 17 Aug 2000 12:59:20 -0700 From: "D. C. Sessions" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Kaplan Enjoins 2600 from Posting and Linking Date: Thu, 17 Aug 2000 12:56:26 -0700 X-Mailer: KMail [version 1.0.29] Content-Type: text/plain References: <200008171525.AA1223229732@mail.nearside.com> In-Reply-To: <200008171525.AA1223229732@mail.nearside.com> MIME-Version: 1.0 Message-Id: <00081712592000.13394@frankenstein.lumbercartel.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, 17 Aug 2000, Jed Borod wrote: > >taken together, those would seem to restrict both the LiViD code and > >t-shirts, since the code snippets reproduced on the shirts, constitute a > >part of the LiVid code, and the LiVid code can be compiled into a > >"circumvention" device. > > I noticed this too. I wonder how far Kaplan or the MPAA would be willing to > go - would someone reading the DeCSS code be illegal? What about a > recording of someone reading the code? What I really want is a copy of the English description of DeCSS that was presented as evidence at trial. Posted to a website. Printed on a T-Shirt. In the meantime, we should all write to the Court asking it to take custody of our shirts until appeals are exhausted. -- | Microsoft: "A reputation for releasing inferior software will make | | it more difficult for a software vendor to induce customers to pay | | for new products or new versions of existing products." | +----------- D. C. & M. V. Sessions ----------+ From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 17 16:03:40 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA26808 for dvd-discuss-outgoing; Thu, 17 Aug 2000 16:03:40 -0400 Received: from smtp05.primenet.com (smtp05.primenet.com [206.165.6.135]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id QAA26805 for ; Thu, 17 Aug 2000 16:03:38 -0400 Received: (from daemon@localhost) by smtp05.primenet.com (8.9.3/8.9.3) id NAA11987 for ; Thu, 17 Aug 2000 13:03:29 -0700 (MST) Received: from sessions.phx.primenet.com(206.132.239.114), claiming to be "heorot.lumbercartel.com" via SMTP by smtp05.primenet.com, id smtpdAAAJXaGix; Thu Aug 17 13:03:09 2000 Received: from frankenstein.lumbercartel.com (IDENT:dcs@frankenstein.lumbercartel.com [192.168.6.2]) by heorot.lumbercartel.com (8.9.3/8.8.7) with SMTP id NAA23876 for ; Thu, 17 Aug 2000 13:03:02 -0700 From: "D. C. Sessions" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Kaplan Enjoins 2600 from Posting and Linking Date: Thu, 17 Aug 2000 13:00:10 -0700 X-Mailer: KMail [version 1.0.29] Content-Type: text/plain References: In-Reply-To: MIME-Version: 1.0 Message-Id: <00081713030201.13394@frankenstein.lumbercartel.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, 17 Aug 2000, Jeremy Erwin wrote: > [Defendents et al. are enjoined from] > > (1)(b) posting on any Internet web site, or in any other way manufacturing, > importing or offering to the public, providing, or otherwise trafficking in > any technology, product, service, device, component, or part thereof, that: Sounds like the Court is going to be busy responding to requests from public speakers needing prior determinations on whether their presentations are covered by the ruling. -- | Microsoft: "A reputation for releasing inferior software will make | | it more difficult for a software vendor to induce customers to pay | | for new products or new versions of existing products." | +----------- D. C. & M. V. Sessions ----------+ From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 17 16:04:03 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA26817 for dvd-discuss-outgoing; Thu, 17 Aug 2000 16:04:03 -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 QAA26814 for ; Thu, 17 Aug 2000 16:03:53 -0400 Message-ID: <20000817200317.6448.qmail@web513.mail.yahoo.com> Received: from [131.44.121.4] by web513.mail.yahoo.com; Thu, 17 Aug 2000 13:03:17 PDT Date: Thu, 17 Aug 2000 13:03:17 -0700 (PDT) From: Bryan Taylor Subject: [dvd-discuss] Kaplan on "First 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 Kaplan's dismissal of the authorization at sale argument is really not very satisfying. Defendants’ argument seems to be a corruption of the first sale doctrine, which holds that the copyright holder, notwithstanding the exclusive distribution right conferred by Section 106(3) of the Copyright Act, 17 U.S.C.§ 106(3), is deemed by its “first sale” of a copy of the copyrighted work to have consented to subsequent sale of the copy. See generally 2 NIMMER §§ 8.11-8.12. Kaplan's knowledge of the First Sale document is extremely shoddy, and clearly grounds for appeal. First Sale is codified in 17 U.S.C. 109, which provides MUCH more than Kaplan admits. His focus on "subsequent sale" is lousy. Perhaps he should read Quality King v. L'Anza, or perhaps this part of the First Sale doctrine, which he ignores: 17 U.S.C. 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." __________________________________________________ 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 Aug 17 16:16:22 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA27405 for dvd-discuss-outgoing; Thu, 17 Aug 2000 16:16:22 -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 QAA27402 for ; Thu, 17 Aug 2000 16:16:21 -0400 Received: from ppp.anonymizer.com (c02-068.015.popsite.net [64.24.73.68]) by cyberpass.net (8.8.8/8.7.3) with ESMTP id NAA02572; Thu, 17 Aug 2000 13:18:25 -0700 (PDT) Message-Id: <4.3.2.7.2.20000817130723.00b2d8a0@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, 17 Aug 2000 13:16:08 -0700 To: dvd-discuss@eon.law.harvard.edu, "'dvd-discuss@eon.law.harvard.edu'" From: "James S. Tyre" Subject: RE: [dvd-discuss] Kaplan Decision for MPAA 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 03:38 PM 8/17/2000 -0400, Leland Ray wrote: >Let me see if I remember my CourtTV law class properly... > > >Probably, whether or not attorney's fees are sought is >in a post trial motion. No. Kaplan specifically denied attorney's fees to Plaintiffs. He did award them costs - filing fees, copying charges, deposition reporter fees, various other things, which will not be insubstantial here - but no attorney's fees. When attoneys' fees are sought and granted, the *amount* is determined in post-trial proceedings, but the basic issue (do you get them or not) is determined in the main decision, as Kaplan did here. >There will be an additional hearing to decide actual measures, >damages, injunctions, motions etc. In order to appeal, >you have to post a bond. That means a final amount of all >damages has to be decided, the bond is some percentage >of the judgment. Since Corley doesn't have a lot of money, >and Plaintiffs did not seek large monetary damages, it >should not be headline breaking. Again, no. Plaintiffs sought, and got, only an injunction, no damages award. The bond, if any, need only be large enough to prevent Plaintiffs from collecting (while the appeal is pending) the specific costs they will be awarded, since they were not awarded either damages or attorneys fees. -------------------------------------------------------------------- James S. Tyre mailto:jstyre@jstyre.com 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 Aug 17 16:37:01 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA27954 for dvd-discuss-outgoing; Thu, 17 Aug 2000 16:37:01 -0400 Received: from web6405.mail.yahoo.com (web6405.mail.yahoo.com [128.11.22.153]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id QAA27951 for ; Thu, 17 Aug 2000 16:37:00 -0400 Message-ID: <20000817203654.18999.qmail@web6405.mail.yahoo.com> Received: from [207.1.61.98] by web6405.mail.yahoo.com; Thu, 17 Aug 2000 13:36:54 PDT Date: Thu, 17 Aug 2000 13:36:54 -0700 (PDT) From: Pete Broule Subject: Re: [dvd-discuss] Kaplan Enjoins 2600 from Posting and Linking To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > (3)(c) "DeCSS" means any computer program, file or device that may be > used > to decrypt or unscramble the contents of DVDs that are protected, or > otherwise to circumvent the protection afforded, by CSS and that > permits > the copying of the contents or any portion thereof. It's interesting to take this apart. "may be used to decrypt ... and permits the copying ..." ^^^^^^^^^^^^^^ ^^^^^^^ Now, does copying into RAM count? If so, then any (licensed or not) DVD player is DeCSS. So let's assume that copying into RAM doesn't count, but copying onto the hard disk does. Next, how should "permits" be understood? Does it refer to the device as is, or to its potential uses? If the former (the more natural interpretation, in my view), then LiViD is not DeCSS (as is, it does not permit copying, AFAIK, even though it's granted you could modify it more easily than a closed-source player.) If the latter (another "may be used to"), then, again, a licensed player is DeCSS too, because it can be used (not without some hacking) to copy. Note how the definition of DeCSS doesn't mention DVDCCA licenses, nor open or closed source, which are the principal differences between LiViD and "players the MPAA doesn't object to." __________________________________________________ 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 Aug 17 16:48:22 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA28100 for dvd-discuss-outgoing; Thu, 17 Aug 2000 16:48:22 -0400 Received: from smtp05.primenet.com (smtp05.primenet.com [206.165.6.135]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id QAA28097 for ; Thu, 17 Aug 2000 16:48:20 -0400 Received: (from daemon@localhost) by smtp05.primenet.com (8.9.3/8.9.3) id NAA02978 for ; Thu, 17 Aug 2000 13:48:17 -0700 (MST) Received: from sessions.phx.primenet.com(206.132.239.114), claiming to be "heorot.lumbercartel.com" via SMTP by smtp05.primenet.com, id smtpdAAA9xaayf; Thu Aug 17 13:47:54 2000 Received: from frankenstein.lumbercartel.com (IDENT:dcs@frankenstein.lumbercartel.com [192.168.6.2]) by heorot.lumbercartel.com (8.9.3/8.8.7) with SMTP id NAA24011 for ; Thu, 17 Aug 2000 13:47:45 -0700 From: "D. C. Sessions" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Kaplan Enjoins 2600 from Posting and Linking Date: Thu, 17 Aug 2000 13:43:58 -0700 X-Mailer: KMail [version 1.0.29] Content-Type: text/plain References: <20000817203654.18999.qmail@web6405.mail.yahoo.com> In-Reply-To: <20000817203654.18999.qmail@web6405.mail.yahoo.com> MIME-Version: 1.0 Message-Id: <00081713474500.13454@frankenstein.lumbercartel.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, 17 Aug 2000, Pete Broule wrote: > > (3)(c) "DeCSS" means any computer program, file or device that may be > > used > > to decrypt or unscramble the contents of DVDs that are protected, or > > otherwise to circumvent the protection afforded, by CSS and that > > permits > > the copying of the contents or any portion thereof. > > It's interesting to take this apart. > "may be used to decrypt ... and permits the copying ..." > ^^^^^^^^^^^^^^ ^^^^^^^ > > Now, does copying into RAM count? If so, then any (licensed or not) > DVD player is DeCSS. So let's assume that copying into RAM doesn't > count, but copying onto the hard disk does. A distinction without a difference. Since Windows (to name only one) is a virtual-memory operating system. Copies of the memory image are automatically copied to disk (the swap file) in the course of operation and it's extremely difficult if not impossible for application space programs to prevent it. Which means that all Windows (and probably other) DVD players are, according to the ruling, DeCSS. -- | Microsoft: "A reputation for releasing inferior software will make | | it more difficult for a software vendor to induce customers to pay | | for new products or new versions of existing products." | +----------- D. C. & M. V. Sessions ----------+ From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 17 16:51:24 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA28182 for dvd-discuss-outgoing; Thu, 17 Aug 2000 16:51:24 -0400 Received: from mercury.clearway.com (c100.clearway.com [199.103.231.100]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id QAA28179 for ; Thu, 17 Aug 2000 16:51:23 -0400 Received: by c100.clearway.com with Internet Mail Service (5.5.2650.21) id ; Thu, 17 Aug 2000 16:54:49 -0400 Message-ID: From: Leland Ray To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] Kaplan Decision for MPAA Date: Thu, 17 Aug 2000 16:54:46 -0400 MIME-Version: 1.0 X-Mailer: Internet Mail Service (5.5.2650.21) Content-Type: text/plain; charset="iso-8859-1" Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Cool, thanks for the clarifications. That is why you went to law school and make the big bucks. From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 17 16:55:46 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA28242 for dvd-discuss-outgoing; Thu, 17 Aug 2000 16:55:46 -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 QAA28239 for ; Thu, 17 Aug 2000 16:55:43 -0400 Received: by chiara.elte.hu (Postfix, from userid 17806) id DCFD87E1B5; Thu, 17 Aug 2000 22:55:37 +0200 (CEST) Date: Thu, 17 Aug 2000 23:04:52 +0200 (CEST) From: Ingo Molnar To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Kaplan Enjoins 2600 from Posting and Linking In-Reply-To: <00081713474500.13454@frankenstein.lumbercartel.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, 17 Aug 2000, D. C. Sessions wrote: > A distinction without a difference. Since Windows (to name only one) > is a virtual-memory operating system. Copies of the memory image are > automatically copied to disk (the swap file) in the course of > operation and it's extremely difficult if not impossible for > application space programs to prevent it. [...] this is not completely true actually, and this *is* a difference. Most modern operating systems have a way to specify 'unswappable' application memory - eg. pgp uses this to store the typed-in passphrase and the private key (and other cryptographically sensitive data). AFAIK the Xing DVD player uses such unswappable memory to decrypt DVDs. So indeed, if LiViD uses mlock() to 'lock memory', then contents will never be copied to disk, not even temporarily. so indeed it looks like that a carefully coded LiViD [locked memory and no 'copy file' functionality] is not covered by the injunction. Ingo From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 17 16:56:12 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA28250 for dvd-discuss-outgoing; Thu, 17 Aug 2000 16:56:12 -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 QAA28247 for ; Thu, 17 Aug 2000 16:56:10 -0400 Received: from localhost (localhost [[UNIX: localhost]]) by rjmconsulting.com (8.9.3/8.9.3) id OAA03122 for dvd-discuss@eon.law.harvard.edu; Thu, 17 Aug 2000 14:07:25 -0700 From: Russell (James) Miller To: dvd-discuss@eon.law.harvard.edu Subject: RE: [dvd-discuss] Kaplan Decision for MPAA Date: Thu, 17 Aug 2000 14:06:26 -0700 X-Mailer: KMail [version 1.0.29.2] Content-Type: text/plain References: In-Reply-To: MIME-Version: 1.0 Message-Id: <0008171407221H.04283@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 No they make the big bucks cause by and large people hate lawyers. ;-) I don't - well, depending on what side they're on. I like you guys. *covers body parts* ok, nuff levity. --james (Russell) On Thu, 17 Aug 2000, you wrote: > Cool, thanks for the clarifications. > > That is why you went to law school and make the big > bucks. -- Russell (James) 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 Aug 17 17:08:04 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA28528 for dvd-discuss-outgoing; Thu, 17 Aug 2000 17:08:04 -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 RAA28507 for ; Thu, 17 Aug 2000 17:08:02 -0400 From: eldred@eldritchpress.org Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id RAA01333 for dvd-discuss@eon.law.harvard.edu; Thu, 17 Aug 2000 17:15:21 -0400 Date: Thu, 17 Aug 2000 17:15:16 -0400 To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] authority by sloppy Message-ID: <20000817171516.B1080@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 Slashdot discussion: But did he? by Sloppy (sloppy@spam^H^H^H^Hrt66.com) on Thursday August 17, @03:32PM EDT (User #14984 Info) >> The DMCA is a law. Anyone posting DeCSS is in direct violation of that law. It's really really simple. No, it isn't. DMCA talks about circumventing the protection without authorization, but so far (I haven't finished reading Kaplan's whole opinion yet) the judge has not explained why the owner of a DVD does not have authorization to watch the movie. Remember: DMCA strongly implies that whatever authorization there is, comes from the copyright owner of the work, not the inventor of the encryption algorithm. Furthermore, the DVDs are sold without the buyer contractually agreeing to certain conditions (i.e. using an approved player) in exchange for that authorization. Therefore, the question of whether I have authorization or not, is identical whether I play the movie with LiVid or a Sony DVD player. If I am violating DMCA when I play a DVD with LiVid, then I am violating DMCA when I play a DVD with a Sony DVD player. I am pretty sure this situation was not Congress' intent, therefore I think authorization has been granted, and therefore DeCSS does not break the law. Re:But did he? (Score:1) by Sloppy (sloppy@spam^H^H^H^Hrt66.com) on Thursday August 17, @03:51PM EDT (User #14984 Info) (Ah, he tries to address it at the bottom of page 31.) [Reading...] ... and yes, he screwed up. He concludes that authorization is not granted. There is no explanation here as to under what conditions authority is granted, so I must assume that Kaplan believes that it is always illegal to watch a DVD regardless of whether the manufacturer of the player is licensed by DVD-CCA or not. In other words: Kaplan is wrong. So it looks like the authority model is good grounds for appeal. Now we can pry into the antitrust arguments more. ---- "Eric" Eric Eldred Eldritch Press mailto:Eldred@EldritchPress.org http://www.eldritchpress.org/EricEldred.vcf From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 17 17:16:50 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA28753 for dvd-discuss-outgoing; Thu, 17 Aug 2000 17:16:50 -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 RAA28750 for ; Thu, 17 Aug 2000 17:16:48 -0400 Received: by chiara.elte.hu (Postfix, from userid 17806) id 1498A7E1B5; Thu, 17 Aug 2000 23:16:42 +0200 (CEST) Date: Thu, 17 Aug 2000 23:25:57 +0200 (CEST) From: Ingo Molnar To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] the purpose of creating DeCSS Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu "Moreover, the Court does not credit Mr. Johansen's testimony that he created DeCSS solely for the purpose of building a Linux player." is there any other explanation for it? DVD rippers existed before DeCSS, DVD players existed on Windows, why the heck would Mr. Johansen have done this if not for Linux? Mr. Johansen had been on the LiViD mailing list long before he created DeCSS. The reverse engineering exception has no meaning under Kaplan's interpretation, because *any* reverse engineering has a definitive 'fame' value as well. Just make a protection system highprofile enough and it cannot be reverse engineered??? Ingo From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 17 17:22:40 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA29266 for dvd-discuss-outgoing; Thu, 17 Aug 2000 17:22:40 -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 RAA29263 for ; Thu, 17 Aug 2000 17:22:38 -0400 Received: from localhost (jbrelin@localhost) by shaft.bitmine.net (8.9.3/8.9.3/Debian 8.9.3-21) with ESMTP id OAA05256 for ; Thu, 17 Aug 2000 14:22:25 -0700 Date: Thu, 17 Aug 2000 14:22:24 -0700 (PDT) From: Jeme A Brelin X-Sender: jbrelin@shaft.bitmine.net To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Kaplan Enjoins 2600 from Posting and Linking In-Reply-To: <20000817203654.18999.qmail@web6405.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, 17 Aug 2000, Pete Broule wrote: > > (3)(c) "DeCSS" means any computer program, file or device that may be > > used > > to decrypt or unscramble the contents of DVDs that are protected, or > > otherwise to circumvent the protection afforded, by CSS and that > > permits > > the copying of the contents or any portion thereof. > It's interesting to take this apart. > "may be used to decrypt ... and permits the copying ..." > ^^^^^^^^^^^^^^ ^^^^^^^ > Now, does copying into RAM count? If so, then any (licensed or not) > DVD player is DeCSS. So let's assume that copying into RAM doesn't > count, but copying onto the hard disk does. It doesn't seem to take any particular meaning of the word "Copying" either. A LICENSED DVD player (hardware) is DeCSS by this definition. It does the decrypting and descrambling and then outputs on an unencrypted analog video channel (which goes nicely into my theoretical video capture board). Is there any way to extend this injuction to licensed dvd manufacturers? Can we do anything to demonstrate the absurdity? > Note how the definition of DeCSS doesn't mention DVDCCA licenses, nor > open or closed source, which are the principal differences between > LiViD and "players the MPAA doesn't object to." I think there's no difference between a DVD player and DeCSS by Kaplan's definition. PLEASE rebut. Jeme. -- ----------------- Jeme A Brelin jeme@brelin.net ----------------- [cc] counter-copyright http://www.openlaw.org From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 17 17:25:16 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA29440 for dvd-discuss-outgoing; Thu, 17 Aug 2000 17:25:16 -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 RAA29437 for ; Thu, 17 Aug 2000 17:25:15 -0400 Received: by chiara.elte.hu (Postfix, from userid 17806) id A81397E1B5; Thu, 17 Aug 2000 23:25:07 +0200 (CEST) Date: Thu, 17 Aug 2000 23:34:22 +0200 (CEST) From: Ingo Molnar To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] the Fair Use doctrine Message-ID: MIME-Version: 1.0 Content-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 argues that DMCA preempts Fair Use: "Congress struck a balance. The compromise it reached, depending upon future technological and commercial developments, may or may not prove ideal." but isnt the Fair Use doctrine something that evolved from the First Amendment? Didnt the Supreme Court rule that Fair Use as provided by the Copyright Act walks the fine line of constitutionality, and that any subsequent restriction on it (such as the DMCA) would be unconsitutional? Kaplan mentions this argument in his ruling, and argues that Congress thought otherwise. But the Congress does not preempt the First Amendment... Ingo From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 17 17:28:00 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA29508 for dvd-discuss-outgoing; Thu, 17 Aug 2000 17:28:00 -0400 Received: from tbird.iworld.com ([63.236.72.237]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA29505 for ; Thu, 17 Aug 2000 17:27:59 -0400 Received: (from nobody@localhost) by tbird.iworld.com (8.10.2/8.10.2) id e7HLREK24429; Thu, 17 Aug 2000 17:27:14 -0400 Date: Thu, 17 Aug 2000 17:27:14 -0400 Message-Id: <200008172127.e7HLREK24429@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 Enjoins 2600 from Posting and Linking Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Wendy Seltzer wrote: >metaphor for the propagation of decryption tools, to find 1201 necessary to >the important governmental interest of protecting copyright. The only interest the gov't (Constitution Congress etc) has professed in copyright is availability and publication of works. Maybe he should read the text himself >By this evening, I hope to have a line-numbered text version of the opinion >posted to facilitate discussion. >As always, background documents are at >. > >On to the appeal. Act II commences. >--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/ > 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 Thu Aug 17 17:30:49 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA29586 for dvd-discuss-outgoing; Thu, 17 Aug 2000 17:30:49 -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 RAA29583 for ; Thu, 17 Aug 2000 17:30:48 -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 OAA02054 for ; Thu, 17 Aug 2000 14:30:28 -0700 Received: (from daw@localhost) by blowfish.isaac.cs.berkeley.edu (8.8.7/8.8.7) id NAA14279; Thu, 17 Aug 2000 13:39:11 -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] the purpose of creating DeCSS Date: 17 Aug 2000 13:38:02 -0700 Organization: A poorly-installed InterNetNews site Lines: 18 Distribution: isaac Message-ID: <8nhifa$du6$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 Ingo Molnar wrote: > "Moreover, the Court does not credit Mr. Johansen's testimony that he > created DeCSS solely for the purpose of building a Linux player." > > is there any other explanation for it? DVD rippers existed before DeCSS, > DVD players existed on Windows, why the heck would Mr. Johansen have done > this if not for Linux? Mr. Johansen had been on the LiViD mailing list > long before he created DeCSS. The reverse engineering exception has no > meaning under Kaplan's interpretation, because *any* reverse engineering > has a definitive 'fame' value as well. Just make a protection system > highprofile enough and it cannot be reverse engineered??? I haven't read the decision yet, but the quote you posted surprised me. Where in the statute is it required that DeCSS was created solely for the purpose of building a Linux player? The DMCA talks about "primary purpose" and so on. Where does it say "sole purpose"? What am I missing? Off to read the decision.... From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 17 17:35:03 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA30274 for dvd-discuss-outgoing; Thu, 17 Aug 2000 17:35:03 -0400 Received: from mercury.clearway.com (c100.clearway.com [199.103.231.100]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA30271 for ; Thu, 17 Aug 2000 17:35:02 -0400 Received: by c100.clearway.com with Internet Mail Service (5.5.2650.21) id ; Thu, 17 Aug 2000 17:38:28 -0400 Message-ID: From: Leland Ray To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] the purpose of creating DeCSS Date: Thu, 17 Aug 2000 17:38:24 -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 I think this is a huge statutory flaw, because it says in effect that there must only be one motive for writing computer code in order to take advantage of the exception. In fact, Kaplan points out that there is evidence of a lot of motives for writing DeCSS. He does not deny that one of them was to create a Linux player. The reason I think this argument is so problematic is that people who engage in creative expressive work always have multiple motives. I might write computer programs for money, but let me tell you, I love it. I get personal satisfaction from it. It would be incorrect to argue that I come to work just to make money -- there are lots of other reasons. Jon Johansen likes to program and likes to solve technical problems. Fine, evidence of human being has been entered into the record. -----Original Message----- From: Ingo Molnar [mailto:mingo@elte.hu] Sent: Thursday, August 17, 2000 5:26 PM To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] the purpose of creating DeCSS "Moreover, the Court does not credit Mr. Johansen's testimony that he created DeCSS solely for the purpose of building a Linux player." is there any other explanation for it? DVD rippers existed before DeCSS, DVD players existed on Windows, why the heck would Mr. Johansen have done this if not for Linux? Mr. Johansen had been on the LiViD mailing list long before he created DeCSS. The reverse engineering exception has no meaning under Kaplan's interpretation, because *any* reverse engineering has a definitive 'fame' value as well. Just make a protection system highprofile enough and it cannot be reverse engineered??? Ingo From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 17 17:36:27 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA30427 for dvd-discuss-outgoing; Thu, 17 Aug 2000 17:36:27 -0400 Received: from tbird.iworld.com ([63.236.72.237]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA30424 for ; Thu, 17 Aug 2000 17:36:26 -0400 Received: (from nobody@localhost) by tbird.iworld.com (8.10.2/8.10.2) id e7HLZgs25500; Thu, 17 Aug 2000 17:35:42 -0400 Date: Thu, 17 Aug 2000 17:35:42 -0400 Message-Id: <200008172135.e7HLZgs25500@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 Enjoins 2600 from Posting and Linking Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Jeremy Erwin wrote: >On Thu, 17 Aug 2000, Wendy Seltzer wrote: >I was reading the order, and came across the following statements: > >(3)(c) "DeCSS" means any computer program, file or device that may be used >to decrypt or unscramble the contents of DVDs that are protected, or >otherwise to circumvent the protection afforded, by CSS and that permits >the copying of the contents or any portion thereof. >and >[Defendents et al. are enjoined from] > >(1)(b) posting on any Internet web site, or in any other way manufacturing, >importing or offering to the public, providing, or otherwise trafficking in >any technology, product, service, device, component, or part thereof, that: > >[constitutes DeCSS] > >taken together, those would seem to restrict both the LiViD code and >t-shirts, since the code snippets reproduced on the shirts, constitute a >part of the LiVid code, and the LiVid code can be compiled into a >"circumvention" device. > >Bought and Paid for, I suppose. >Jeremy Erwin I've got a business plan about a product/service that uses automated reverse engineering to port Gnome apps to KDE and back (GPLed apps of course). I suppose now i have to hire 3 times as many lawyers. Rares PS: hint hint: I'm doing this partly because examples that support our claims need to be familiar to all involved in future proceedings and partly because I'll be damned if I can't make an honest buck from my self-education. 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 Thu Aug 17 17:38:28 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA02636 for dvd-discuss-outgoing; Thu, 17 Aug 2000 17:38:28 -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 RAA02633 for ; Thu, 17 Aug 2000 17:38:26 -0400 Received: from ppp.anonymizer.com (c02-068.015.popsite.net [64.24.73.68]) by cyberpass.net (8.8.8/8.7.3) with ESMTP id OAA22696 for ; Thu, 17 Aug 2000 14:40:31 -0700 (PDT) Message-Id: <4.3.2.7.2.20000817140740.00aa6810@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, 17 Aug 2000 14:26:24 -0700 To: dvd-discuss@eon.law.harvard.edu From: "James S. Tyre" Subject: [dvd-discuss] Garbus, Gross to be slashdotted 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 With everyone paying attention to the ruling itself, some may not have noticed that the latest slashdot interview, "Ask the DeCSS legal team", went up moments after the announcement of the ruling. http://slashdot.org/article.pl?sid=00/08/17/1836212&mode=thread Several weeks ago, I knew that Garbus had agreed, though I did not know the question session would go up today. I suspect, though I could be wrong, that many here will be interested in how Garbus answers my sole question, if it makes the final cut. (It took about 7 minutes to be moderated up to a 5, though there are lots of other fives also, and my karma, probably like many of yours, is frozen.) I'm asking this of Garbus lawyer to lawyer, but on the whole, this list definitely should take it as a compliment from this old-fart lawyer. http://slashdot.org/comments.pl?sid=00/08/17/1836212&cid=43 The Defense Team and Openlaw (Score:5, Interesting) by Jim Tyre (jstyre(at)jstyre(dot)com) on Thursday August 17, @02:07PM EST (#43) (User #100017 Info) http://censorware.org As you know, the Openlaw/DVD mail list was a direct outgrowth of continuing discussions on slashdot about the DVD/DeCSS cases. As someone who has been a practicing First Amendment lawyer for a very long time (22 years), though not as long as you (this is directed to Martin Garbus), I was, at first, highly skeptical of the idea that a group of mostly programmers could make any meaningful contribution to an actual court case. But as time went on, the discussions became more focused, my view on that, borne of my own traditional way of doing legal briefs, came to change considerably. I saw arguments being developed (and trashed, where appropriate) that likely would not have happened but for the massive input into that list. Your colleague Ed Hernstadt posted there occasionally, my understanding is that your team was getting good information from there, and even one of your expert witnesses (Ole Craig) seems to have come to your attention as a result of his contributions to that list. So my question, primarily for Martin, is how much did you really gain from that list? Was the Openlaw/DVD forum really of meaningful help to your efforts, or, at least in the context of providing specific help to the trial lawyers, was it a waste of time for those who participated? I know, of course, that Kaplan ruled against the defense today, but I'm really looking at the broader implications of something like that forum. Do you see it as something which, in the appropriate circumstances, can have real value to a case? -------------------------------------------------------------------- James S. Tyre mailto:jstyre@jstyre.com 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 Aug 17 17:49:39 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA03424 for dvd-discuss-outgoing; Thu, 17 Aug 2000 17:49:39 -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 RAA03421 for ; Thu, 17 Aug 2000 17:49:38 -0400 Received: by chiara.elte.hu (Postfix, from userid 17806) id 7F2617E1B5; Thu, 17 Aug 2000 23:49:29 +0200 (CEST) Date: Thu, 17 Aug 2000 23:58:44 +0200 (CEST) From: Ingo Molnar To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] the purpose of creating DeCSS 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, 17 Aug 2000, Leland Ray wrote: > I think this is a huge statutory flaw, because it says in effect that > there must only be one motive for writing computer code in order to > take advantage of the exception. In fact, Kaplan points out that there > is evidence of a lot of motives for writing DeCSS. He does not deny > that one of them was to create a Linux player. neither does he confirm it: "Hence, the Court finds that Mr. Johansen and the others who actually did develop DeCSS did not do so solely for the purpose of making a Linux DVD player if, indeed, developing a Linux-based DVD player was among their purposes." he even raises the possibility that interoperability was not the goal. (which is a pretty absurd assumption) 1201(f)(1) says: + (1) Notwithstanding the provisions of subsection (a)(1)(A), a person who has lawfully obtained the right to use a copy of a computer program may circumvent a technological measure that effectively controls access to a particular portion of that program for the sole purpose of identifying and analyzing those elements of the program that are necessary to achieve interoperability of an independently created computer program with other programs, and that have not previously been readily available to the person engaging in the circumvention, to the extent any such acts of identification and analysis do not constitute infringement under this title. this 'sole purpose' is what Kaplan is referring to. Ingo From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 17 17:53:28 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA03810 for dvd-discuss-outgoing; Thu, 17 Aug 2000 17:53:28 -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 RAA03807 for ; Thu, 17 Aug 2000 17:53:26 -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 OAA02175 for ; Thu, 17 Aug 2000 14:53:07 -0700 Received: (from daw@localhost) by blowfish.isaac.cs.berkeley.edu (8.8.7/8.8.7) id OAA14330; Thu, 17 Aug 2000 14:01:49 -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] the purpose of creating DeCSS Date: 17 Aug 2000 14:00:40 -0700 Organization: A poorly-installed InterNetNews site Lines: 19 Distribution: isaac Message-ID: <8nhjpo$dvl$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 Here's an interesting quote from the decision. Kaplan concludes that DeCSS was designed primarily to circumvent, using the following reasoning: "By [...] admission, [...] DeCSS was created solely for the purpose of decrypting CSS---that is all it does. Hence, [...] defendants clearly violated Section 1201(a)(2)(A)." (p.34) The fact that DeCSS decrypts is indisputed and irrelevant. Yes, of course DeCSS decrypts; so does every other DVD player in existence. Yet 1201(a)(2)(A) controls circumvention, not decryption. The mere fact that DeCSS decrypts is not at all incompatible with an assertion that DeCSS was designed, not for circumvention, but rather for legitimate purposes. I found the failure to even inquire into this issue surprising. Kaplan later states "the one and only function of DeCSS is to circumvent CSS". Yet I have not yet found any place in the decision that even attempts to justify this finding; instead, it is simply stated flat out as an "inescapable fact". From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 17 17:56:42 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA03861 for dvd-discuss-outgoing; Thu, 17 Aug 2000 17:56:42 -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 RAA03858 for ; Thu, 17 Aug 2000 17:56:41 -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 OAA02193 for ; Thu, 17 Aug 2000 14:56:21 -0700 Received: (from daw@localhost) by blowfish.isaac.cs.berkeley.edu (8.8.7/8.8.7) id OAA14362; Thu, 17 Aug 2000 14:05:04 -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] the purpose of creating DeCSS Date: 17 Aug 2000 14:04:55 -0700 Organization: A poorly-installed InterNetNews site Lines: 29 Distribution: isaac Message-ID: <8nhk1n$e0n$1@blowfish.isaac.cs.berkeley.edu> References: <8nhifa$du6$1@blowfish.isaac.cs.berkeley.edu> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Ok, having taken a look at the context surrounding that quote, my questions are answered. Kaplan was inquiring into whether DeCSS should be safe under the reverse engineering exception, which requires that it have been created for the sole purposes of interoperability. In this context, I agree that the issue of whether interoperability was Johansen's sole purpose is indeed relevant, in this limited context. I apologize for the bogus email. In article <8nhifa$du6$1@blowfish.isaac.cs.berkeley.edu>, David A. Wagner wrote: > Ingo Molnar wrote: > > "Moreover, the Court does not credit Mr. Johansen's testimony that he > > created DeCSS solely for the purpose of building a Linux player." > > > > is there any other explanation for it? DVD rippers existed before DeCSS, > > DVD players existed on Windows, why the heck would Mr. Johansen have done > > this if not for Linux? Mr. Johansen had been on the LiViD mailing list > > long before he created DeCSS. The reverse engineering exception has no > > meaning under Kaplan's interpretation, because *any* reverse engineering > > has a definitive 'fame' value as well. Just make a protection system > > highprofile enough and it cannot be reverse engineered??? > > I haven't read the decision yet, but the quote you posted surprised me. > Where in the statute is it required that DeCSS was created solely for the > purpose of building a Linux player? The DMCA talks about "primary purpose" > and so on. Where does it say "sole purpose"? What am I missing? > > Off to read the decision.... From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 17 18:02:08 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA03972 for dvd-discuss-outgoing; Thu, 17 Aug 2000 18:02:08 -0400 Received: from chiara.elte.hu (chiara.elte.hu [157.181.150.200]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id SAA03969 for ; Thu, 17 Aug 2000 18:02:06 -0400 Received: by chiara.elte.hu (Postfix, from userid 17806) id 0A5EA7E1B5; Fri, 18 Aug 2000 00:02:00 +0200 (CEST) Date: Fri, 18 Aug 2000 00:11:16 +0200 (CEST) From: Ingo Molnar To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] the purpose of creating DeCSS In-Reply-To: <8nhk1n$e0n$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 17 Aug 2000, David A. Wagner wrote: > Ok, having taken a look at the context surrounding that quote, my > questions are answered. Kaplan was inquiring into whether DeCSS > should be safe under the reverse engineering exception, which requires > that it have been created for the sole purposes of interoperability. > In this context, I agree that the issue of whether interoperability > was Johansen's sole purpose is indeed relevant, in this limited > context. but i do ask wether 'sole purpose' is to be understood as 'the reverse engineering is done by Johansen for the sole purpose of interoperability, then Johansen drops dead.' Because everything else short of this would do something not solely connected to reverse engieneer for interoperability. (if he intends to talk about the reverse engineering then that immediately creates another 'purpose'.) the 'correct' reading of the 'sole purpose' should be IMHO/IANAL that 'no accidental infringement should be enabled by this section'. Ie. the goal of interoperability is not a blanque check to view pirated DVDs. Ingo From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 17 18:08:33 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA04163 for dvd-discuss-outgoing; Thu, 17 Aug 2000 18:08:33 -0400 Received: from mercury.clearway.com (c100.clearway.com [199.103.231.100]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id SAA04160 for ; Thu, 17 Aug 2000 18:08:32 -0400 Received: by c100.clearway.com with Internet Mail Service (5.5.2650.21) id ; Thu, 17 Aug 2000 18:11:58 -0400 Message-ID: From: Leland Ray To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] the purpose of creating DeCSS Date: Thu, 17 Aug 2000 18:11:51 -0400 MIME-Version: 1.0 X-Mailer: Internet Mail Service (5.5.2650.21) Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: 8bit X-MIME-Autoconverted: from quoted-printable to 8bit by eon.law.harvard.edu id SAA04161 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu See footnote 137 (bottom of page 31): Decryption or avoidance of an access control measure is not "circumvention" within the meaning of the statute unless it occurs "without the authority of the copyright owner." 17 U.S.C. § 1201(a)(3)(A). Defendants posit that purchasers of a DVD acquire the right "to perform all acts with it that are not exclusively granted to the copyright holder." Based on this premise, they argue that DeCSS does not circumvent CSS within the meaning of the statute because the Copyright Act does not grant the copyright holder the right to prohibit purchasers from decrypting. As the copyright holder has no statutory right to prohibit decryption, the argument goes, decryption cannot be understood as unlawful circumvention. Def. Post-Trial Mem. 10-13. The argument is pure sophistry. The DMCA proscribes trafficking in technology that decrypts or avoids an access control measure without the copyright holder consenting to the decryption or avoidance. See JUDICIARY COMM. REP. at 17-18 (fair use applies "where the access is authorized"). ----- Notice the last statement "consenting to the decryption" Fair use applies only when "access is authorized"... The idea is that authority is conveyed at each act of viewing the work, that is, you have to call the studio each time you play any work -- on videotape or DVD -- and ask permission before you play it. In other words, the right to control access is part of the right of distribution of the copyright owners (see conclusion, p. 89). From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 17 18:10:21 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA04245 for dvd-discuss-outgoing; Thu, 17 Aug 2000 18:10:21 -0400 Received: from samsara.law.cwru.edu (samsara.LAW.CWRU.Edu [129.22.186.16]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id SAA04242 for ; Thu, 17 Aug 2000 18:10:20 -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 SAA24844; Thu, 17 Aug 2000 18:09:47 -0400 Message-Id: <200008172209.SAA24844@samsara.law.cwru.edu> To: dvd-discuss@eon.law.harvard.edu cc: junger@samsara.law.cwru.edu Subject: Re: [dvd-discuss] Kaplan Enjoins 2600 from Posting and Linking In-reply-to: Your message of "Thu, 17 Aug 2000 13:36:54 PDT." <20000817203654.18999.qmail@web6405.mail.yahoo.com> Date: Thu, 17 Aug 2000 18:09:17 -0400 From: "Peter D. Junger" Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Pete Broule writes: : > (3)(c) "DeCSS" means any computer program, file or device that may be : > used : > to decrypt or unscramble the contents of DVDs that are protected, or : > otherwise to circumvent the protection afforded, by CSS and that : > permits : > the copying of the contents or any portion thereof. : : It's interesting to take this apart. : "may be used to decrypt ... and permits the copying ..." : ^^^^^^^^^^^^^^ ^^^^^^^ : : Now, does copying into RAM count? If so, then any (licensed or not) : DVD player is DeCSS. So let's assume that copying into RAM doesn't : count, but copying onto the hard disk does. : Next, how should "permits" be understood? Does it refer to the device : as is, or to its potential uses? If the former (the more natural : interpretation, in my view), then LiViD is not DeCSS (as is, it does : not permit copying, AFAIK, even though it's granted you could modify : it more easily than a closed-source player.) If the latter (another : "may be used to"), then, again, a licensed player is DeCSS too, : because it can be used (not without some hacking) to copy. : : Note how the definition of DeCSS doesn't mention DVDCCA licenses, nor : open or closed source, which are the principal differences between : LiViD and "players the MPAA doesn't object to." In fairness to Kaplan, the quoted passage is from the order that applies only to the defendants. The opinion is more nuanced, and quite clearly does *not* say that the distribution of the Livid code would, or would not, be a violation of the DMCA. -- 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 Aug 17 18:13:54 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA04306 for dvd-discuss-outgoing; Thu, 17 Aug 2000 18:13:54 -0400 Received: from tbird.iworld.com ([63.236.72.237]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id SAA04303 for ; Thu, 17 Aug 2000 18:13:53 -0400 Received: (from nobody@localhost) by tbird.iworld.com (8.10.2/8.10.2) id e7HMD9D29171; Thu, 17 Aug 2000 18:13:09 -0400 Date: Thu, 17 Aug 2000 18:13:09 -0400 Message-Id: <200008172213.e7HMD9D29171@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] the purpose of creating DeCSS 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: >Here's an interesting quote from the decision. Kaplan concludes that >DeCSS was designed primarily to circumvent, using the following reasoning: > > "By [...] admission, [...] DeCSS was created solely for the purpose > of decrypting CSS---that is all it does. Hence, [...] defendants > clearly violated Section 1201(a)(2)(A)." (p.34) > >The fact that DeCSS decrypts is indisputed and irrelevant. Yes, of course >DeCSS decrypts; so does every other DVD player in existence. > >Yet 1201(a)(2)(A) controls circumvention, not decryption. The mere fact >that DeCSS decrypts is not at all incompatible with an assertion that DeCSS >was designed, not for circumvention, but rather for legitimate purposes. >I found the failure to even inquire into this issue surprising. > >Kaplan later states "the one and only function of DeCSS is to circumvent >CSS". Yet I have not yet found any place in the decision that even attempts >to justify this finding; instead, it is simply stated flat out as an >"inescapable fact". Ooh tasty... Moonplay Inc would like to dispute on inescapable facts. Thermodynamics is inescapable. Everything else is the favorite theory of the month. Soon... I hope. 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 Thu Aug 17 18:15:22 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA04389 for dvd-discuss-outgoing; Thu, 17 Aug 2000 18:15:22 -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 SAA04386 for ; Thu, 17 Aug 2000 18:15:21 -0400 Received: from mediaone.net (h0060b03c5b8b.ne.mediaone.net [24.128.18.77]) by chmls06.mediaone.net (8.8.7/8.8.7) with ESMTP id SAA17769 for ; Thu, 17 Aug 2000 18:15:14 -0400 (EDT) Message-ID: <399C63F3.4FDD75EE@mediaone.net> Date: Thu, 17 Aug 2000 18:15:15 -0400 From: Sphere X-Mailer: Mozilla 4.73 [en] (WinNT; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Kaplan Enjoins 2600 from Posting and Linking References: <200008172127.e7HLREK24429@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: > > Wendy Seltzer wrote: > > >metaphor for the propagation of decryption tools, to find 1201 necessary to > >the important governmental interest of protecting copyright. > > The only interest the gov't (Constitution Congress etc) has professed in copyright is availability and publication of works. Maybe he should read the text himself So far I've only skimmed, but the only mention I saw of gov't interest was a vague wave at the copyright clause -- and that he only mentioned in regard to the plaintiff's money. We all know the plaintiff wants more money. The law is rather clear that the copyright holder is of little import in considering the copyright clause. I think there are plenty of flaws in this ruling to bring up on appeal. > >By this evening, I hope to have a line-numbered text version of the opinion > >posted to facilitate discussion. > >As always, background documents are at > >. > > > >On to the appeal. > > Act II commences. > > >--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/ > > > 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 -- Sphere. No permanence. No self. No perfection. From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 17 18:17:10 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA04434 for dvd-discuss-outgoing; Thu, 17 Aug 2000 18:17:10 -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 SAA04431 for ; Thu, 17 Aug 2000 18:17:08 -0400 Received: from localhost (localhost [[UNIX: localhost]]) by rjmconsulting.com (8.9.3/8.9.3) id PAA25519 for dvd-discuss@eon.law.harvard.edu; Thu, 17 Aug 2000 15:28:13 -0700 From: Russell (James) Miller To: dvd-discuss@eon.law.harvard.edu Subject: RE: [dvd-discuss] the purpose of creating DeCSS Date: Thu, 17 Aug 2000 15:26:47 -0700 X-Mailer: KMail [version 1.0.29.2] Content-Type: text/plain References: In-Reply-To: MIME-Version: 1.0 Message-Id: <0008171528101J.04283@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 You know, that is not a bad idea at all. Call the DVD-CCA *and* the MPAA *and* the studio that owns the copyright each time you want to play a DVD and ask for authorization in writing. EACH time. And keep pestering them. I bet if even ten thousand of us did that they'd get real pissed real quick. --james (Russell) > Notice the last statement "consenting to the decryption" > > Fair use applies only when "access is authorized"... > > The idea is that authority is conveyed at each act of viewing > the work, that is, you have to call the studio each time > you play any work -- on videotape or DVD -- and ask permission > before you play it. > > In other words, the right to control access is part of the > right of distribution of the copyright owners (see conclusion, > p. 89). -- Russell (James) 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 Aug 17 18:18:07 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA04477 for dvd-discuss-outgoing; Thu, 17 Aug 2000 18:18:07 -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 SAA04474 for ; Thu, 17 Aug 2000 18:18:05 -0400 Received: from localhost (localhost [[UNIX: localhost]]) by rjmconsulting.com (8.9.3/8.9.3) id PAA25563 for dvd-discuss@eon.law.harvard.edu; Thu, 17 Aug 2000 15:29:19 -0700 From: Russell (James) Miller To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] the purpose of creating DeCSS Date: Thu, 17 Aug 2000 15:28:41 -0700 X-Mailer: KMail [version 1.0.29.2] Content-Type: text/plain References: <200008172213.e7HMD9D29171@tbird.iworld.com> In-Reply-To: <200008172213.e7HMD9D29171@tbird.iworld.com> MIME-Version: 1.0 Message-Id: <0008171529181K.04283@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 After what I've been reading on M-theory, etc., I'm not even so sure that thermodynamics is inescapable anymore :) But I digress. --james (Russell) On Thu, 17 Aug 2000, you wrote: > > Ooh tasty... Moonplay Inc would like to dispute on inescapable facts. Thermodynamics is inescapable. Everything else is the favorite theory of the month. > > Soon... I hope. > > 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 -- Russell (James) 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 Aug 17 18:19:17 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA04529 for dvd-discuss-outgoing; Thu, 17 Aug 2000 18:19:17 -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 SAA04526 for ; Thu, 17 Aug 2000 18:19:17 -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 SAA07331 for ; Thu, 17 Aug 2000 18:19:12 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id SAA15715; Thu, 17 Aug 2000 18:19:11 -0400 (EDT) Date: Thu, 17 Aug 2000 18:19:11 -0400 (EDT) Message-Id: <200008172219.SAA15715@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] /. on Kaplan on authority... Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Another Slashdot comment that may be of interest (I haven't read the opinion myself; I spent the afternoon offline and came back to the flood). Off to read the thing myself. Sigh... Kaplan invents new clause in DMCA (Score:3, Interesting) by Sloppy (sloppy@spam^H^H^H^Hrt66.com) on 04:19 PM August 17th, 2000 EST (User #14984 Info) It looks like Kaplan found a hole in the Plaintiff's case and tried to patch it himself by pretending that some additional legislation has been passed! Maybe he always wanted to be a congressman instead of a judge. Check this out, from from page 32: One cannot gain access to a CSS-protected work on a DVD without application of the three keys that are required by the software. One cannot lawfully gain access to the keys except by entering into a license with the DVD CCA under authority granted by the copyright owners or by purchasing a DVD player or drive containing the keys pursuant to such a license. I call your attention to the phrase "by purchasing a DVD player or drive containing the keys pursuant to such a license." Where did this come from? It's not in DMCA. Kaplan pulled it out of his ass. Why is this important? Why did Kaplan make this up? Because: The plaintiffs need for the "authorization" to watch a DVD to not be granted by purchasing the DVD. If authorization is granted by buying the DVD, then DeCSS and LiVid do not violate 1201(a)(2). Kaplan could conclude that authorization is never granted, but that would mean that watching a DVD is always illegal, regardless of the player. Clearly, that would be contrary to Congress' intent when they wrote DMCA. Coming to a conclusion that is contrary to the intent of the law would be a very bad thing. Sort of like an indirect proof in math, where you assume the opposite of what you want to prove, and show that it leads to a contradiction. Kaplan must dream up some way for authorization to be granted to watch the copyrighted work, without it being implicitly granted when one purchases the copyrighted work. One way that a consumer could get authorization would be to sign a licensing agreement when they buy a DVD, where the terms are that the consumer gets authorization, in exchange for agreeing to not watch the DVD on unlicensed players. That would work perfectly. Just one problem: it is ridiculous. People don't sign license agreements when they buy DVDs. So that idea is out. At this point, Kaplan is in a real pickle. He can't say that authorization is granted by an explicit agreement, because DVDs just aren't sold that way. He can't say that authorization is never granted, or the defense wins. He can't say that authorization to watch the DVD is granted when the DVD is bought, or the defense wins. And of course he can't let the defense win, because that would make his old firm look bad since they did consulting work for MPAA. (If only he had recused himself, it would be someone else's problem, and they could just rule for defense. But he didn't recuse himself. Oops.) The poor man is in a real bind here. What can he do? He has to invent some other way for authorization to be granted, and here's what he came up with: "by purchasing a DVD player or drive containing the keys pursuant to such a license." DMCA pretty strongly implies that authorization comes from the copyright owner. There certainly isn't anything in DMCA that says that authorization comes from the algorithm inventor. Maybe if it had been patented, that would have worked. But CSS isn't patented. Oops. There's my challenge to Kaplan and the plaintiffs: explain how I get authorization to play all CSS-protected works (even CSS-protected works where the copyright owner is not a member of MPAA and has no agreements with DVD CCA) by buying a player. Show me the part of DMCA where it says that I can get authorization to circumvent the protection of a copyrighted work, from a third party who may not be acting on behalf of the copyright owner. Show me. I bet you can't. I am convinced now more than ever that the best way to destroy DMCA is to use it. Make a CSS-protected DVD and sue Sony for trafficking in a player that plays it. Let Sony's lawyers explain how they, not me, grant consumers the authorization to circumvent the protection on my work. Let Sony's lawyers explain how they bought that right from DVD CCA. Let them explain how DVD CCA has universal authority over all copyright works that are scrambled by an algorithm that is unpatented, public domain, and available from thousands of sites across The Internet. --- Have a Sloppy night! From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 17 18:25:49 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA04639 for dvd-discuss-outgoing; Thu, 17 Aug 2000 18:25:49 -0400 Received: from penguin.lvcm.com (root@penguin.lvcablemodem.com [24.234.57.165]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id SAA04623 for ; Thu, 17 Aug 2000 18:25:42 -0400 Received: (from jedi@localhost) by penguin.lvcm.com (8.9.3/8.8.7) id PAA19930 for dvd-discuss@eon.law.harvard.edu; Thu, 17 Aug 2000 15:25:26 -0700 From: jedi@penguin.lvcablemodem.com Message-Id: <200008172225.PAA19930@penguin.lvcm.com> Subject: Re: [dvd-discuss] the purpose of creating DeCSS To: dvd-discuss@eon.law.harvard.edu Date: Thu, 17 Aug 2000 15:25:20 -0700 (PDT) In-Reply-To: from "Ingo Molnar" at Aug 18, 2000 12:11:16 AM X-Mailer: ELM [version 2.5 PL3] 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 17 Aug 2000, David A. Wagner wrote: > > > Ok, having taken a look at the context surrounding that quote, my > > questions are answered. Kaplan was inquiring into whether DeCSS > > should be safe under the reverse engineering exception, which requires > > that it have been created for the sole purposes of interoperability. > > In this context, I agree that the issue of whether interoperability > > was Johansen's sole purpose is indeed relevant, in this limited > > context. > > but i do ask wether 'sole purpose' is to be understood as 'the reverse > engineering is done by Johansen for the sole purpose of interoperability, > then Johansen drops dead.' Because everything else short of this would do > something not solely connected to reverse engieneer for interoperability. > (if he intends to talk about the reverse engineering then that immediately > creates another 'purpose'.) > > the 'correct' reading of the 'sole purpose' should be IMHO/IANAL that 'no > accidental infringement should be enabled by this section'. Ie. the goal > of interoperability is not a blanque check to view pirated DVDs. No, it sounds like a good way for those that drafted the legislation (or bought off those that did) to appear quite reasonable while doing an assinine thing. This language gives people like Kaplan the legal excuse to completely exclude large numbers of end users that don't choose to buy into some vendor's unnatural monopoly. It legally enforces compatibility barriers that vendors create by way of proprietary formats while appearing to be something else. Access means the potential for piracy, eventually. This is a characteristic of current technology that too few seem able to come to grips with. It's just getting easier these days, and easier to produce copies that are of reasonable quality. However, the potential for 'putting a couple of wheatboxes face to face' still remains. One could just as easily put a VHS camera in front of their living room TV. Infact, the initial bootlegs of Matrix and STARWARS I were of this kind. From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 17 18:28:13 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA04751 for dvd-discuss-outgoing; Thu, 17 Aug 2000 18:28:13 -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 SAA04748 for ; Thu, 17 Aug 2000 18:28:12 -0400 Received: from mediadriver.net (unverified [24.219.0.115]) by lightning.i3s.net (Rockliffe SMTPRA 3.4.7) with ESMTP id for ; Thu, 17 Aug 2000 17:27:48 -0500 Message-ID: <399C66F6.19F355AC@mediadriver.net> Date: Thu, 17 Aug 2000 22:28:06 +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] Re: [dvd-announce] Kaplan Enjoins 2600 from Posting and Linking References: <4.2.2.20000817135158.00e6ef00@seltzer.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 I am quite disappointed in his opinion regarding the two CSS licensed companies that plan to release a player for Linux. The real number is 3, and none of them have released products. My understanding is that part of the re clause in the DMCA is that when there is not a commercial alternative available, it is valid to reverse engineer for interoperability. In a sense, Kaplan is buying into the vaporware, and supporting the DVD-CCA's hold on license control. One bone he threw us-- 5. Plaintiffs application for an award of attorney s fees pursuant to the Digital Millennium Copyright Act is denied. He could have put a serious dent in our financial ability to fight further. Matt Wendy Seltzer wrote: > Not unexpectedly, Judge Kaplan has ruled against 2600. > > Impressions from an initial skim of the decision: > Kaplan gives short shrift to the expressive content of computer code, > finding the anticircumvention provisions of 1201 to be a valid > content-neutral restriction on speech. He invokes an odd "disease" > metaphor for the propagation of decryption tools, to find 1201 necessary to > the important governmental interest of protecting copyright. > > Kaplan further enjoins linking to DeCSS by pulling hyperlinking within the > 1201 prohibition on "offering" circumvention technologies. He appears > relatively unconcerned with the restrictions on speech a hyperlinking ban > entails. > > The opinion > Final judgment and order > > > (Mirrored at and > ) > > By this evening, I hope to have a line-numbered text version of the opinion > posted to facilitate discussion. > As always, background documents are at > . > > On to the appeal. > --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 Aug 17 18:30:09 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA04857 for dvd-discuss-outgoing; Thu, 17 Aug 2000 18:30:09 -0400 Received: from penguin.lvcm.com (root@penguin.lvcablemodem.com [24.234.57.165]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id SAA04854 for ; Thu, 17 Aug 2000 18:30:07 -0400 Received: (from jedi@localhost) by penguin.lvcm.com (8.9.3/8.8.7) id PAA20020 for dvd-discuss@eon.law.harvard.edu; Thu, 17 Aug 2000 15:30:01 -0700 From: jedi@penguin.lvcablemodem.com Message-Id: <200008172230.PAA20020@penguin.lvcm.com> Subject: Re: [dvd-discuss] Kaplan Enjoins 2600 from Posting and Linking To: dvd-discuss@eon.law.harvard.edu Date: Thu, 17 Aug 2000 15:30:01 -0700 (PDT) In-Reply-To: <200008172209.SAA24844@samsara.law.cwru.edu> from "Peter D. Junger" at Aug 17, 2000 06:09:17 PM X-Mailer: ELM [version 2.5 PL3] 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 > > Pete Broule writes: > > : > (3)(c) "DeCSS" means any computer program, file or device that may be > : > used > : > to decrypt or unscramble the contents of DVDs that are protected, or > : > otherwise to circumvent the protection afforded, by CSS and that > : > permits > : > the copying of the contents or any portion thereof. > : > : It's interesting to take this apart. > : "may be used to decrypt ... and permits the copying ..." > : ^^^^^^^^^^^^^^ ^^^^^^^ > : > : Now, does copying into RAM count? If so, then any (licensed or not) > : DVD player is DeCSS. So let's assume that copying into RAM doesn't > : count, but copying onto the hard disk does. > : Next, how should "permits" be understood? Does it refer to the device > : as is, or to its potential uses? If the former (the more natural > : interpretation, in my view), then LiViD is not DeCSS (as is, it does > : not permit copying, AFAIK, even though it's granted you could modify > : it more easily than a closed-source player.) If the latter (another > : "may be used to"), then, again, a licensed player is DeCSS too, > : because it can be used (not without some hacking) to copy. > : > : Note how the definition of DeCSS doesn't mention DVDCCA licenses, nor > : open or closed source, which are the principal differences between > : LiViD and "players the MPAA doesn't object to." > > In fairness to Kaplan, the quoted passage is from the order that applies only > to the defendants. The opinion is more nuanced, and quite clearly does > *not* say that the distribution of the Livid code would, or would not, be > a violation of the DMCA. However, the problem with this decision is the fact that it doesn't adequately acknowledge the fact that any access on a computer implies some copying going on. Perhaps this wasn't adequately stressed in the defense either. But, once those bits are in control of the OS in some respect the end user can do anything they like with them. The moment the MPAA allowed software DVD players, they let the WHOLE genie out of the bottle. Now they think they can push a foot back in when the rest of the genie is still as much out as she ever was. Meanwhile, an ominous precedent is set that doesn't benefit the MPAA nearly as much as the MPAA thinks it does. [deletia] From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 17 18:31:25 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA04901 for dvd-discuss-outgoing; Thu, 17 Aug 2000 18:31:25 -0400 Received: from penguin.lvcm.com (root@penguin.lvcablemodem.com [24.234.57.165]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id SAA04898 for ; Thu, 17 Aug 2000 18:31:22 -0400 Received: (from jedi@localhost) by penguin.lvcm.com (8.9.3/8.8.7) id PAA20028 for dvd-discuss@eon.law.harvard.edu; Thu, 17 Aug 2000 15:31:15 -0700 From: jedi@penguin.lvcablemodem.com Message-Id: <200008172231.PAA20028@penguin.lvcm.com> Subject: Re: [dvd-discuss] the purpose of creating DeCSS To: dvd-discuss@eon.law.harvard.edu Date: Thu, 17 Aug 2000 15:31:15 -0700 (PDT) In-Reply-To: from "Leland Ray" at Aug 17, 2000 05:38:24 PM X-Mailer: ELM [version 2.5 PL3] 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 this is a huge statutory flaw, because it says in effect > that there must only be one motive for writing computer code > in order to take advantage of the exception. In fact, Kaplan > points out that there is evidence of a lot of motives for > writing DeCSS. He does not deny that one of them was to > create a Linux player. > > The reason I think this argument is so problematic is that > people who engage in creative expressive work always have > multiple motives. I might write computer programs for money, > but let me tell you, I love it. I get personal satisfaction > from it. It would be incorrect to argue that I come to work > just to make money -- there are lots of other reasons. > > Jon Johansen likes to program and likes to solve technical > problems. Fine, evidence of human being has been entered into > the record. If you really think about it, it may not infact be an accident. This may have been the original intent all along. > > -----Original Message----- > From: Ingo Molnar [mailto:mingo@elte.hu] > Sent: Thursday, August 17, 2000 5:26 PM > To: dvd-discuss@eon.law.harvard.edu > Subject: [dvd-discuss] the purpose of creating DeCSS > > > > "Moreover, the Court does not credit Mr. Johansen's testimony that he > created DeCSS solely for the purpose of building a Linux player." > > is there any other explanation for it? DVD rippers existed before DeCSS, > DVD players existed on Windows, why the heck would Mr. Johansen have done > this if not for Linux? Mr. Johansen had been on the LiViD mailing list > long before he created DeCSS. The reverse engineering exception has no > meaning under Kaplan's interpretation, because *any* reverse engineering > has a definitive 'fame' value as well. Just make a protection system > highprofile enough and it cannot be reverse engineered??? > > Ingo > From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 17 18:55:45 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA05472 for dvd-discuss-outgoing; Thu, 17 Aug 2000 18:55:45 -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 SAA05464 for ; Thu, 17 Aug 2000 18:55:34 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id TAA01489 for dvd-discuss@eon.law.harvard.edu; Thu, 17 Aug 2000 19:02:55 -0400 Date: Thu, 17 Aug 2000 19:02:50 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Garbus, Gross to be slashdotted Message-ID: <20000817190250.C1080@eldritchpress.org> References: <4.3.2.7.2.20000817140740.00aa6810@127.0.0.1> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <4.3.2.7.2.20000817140740.00aa6810@127.0.0.1>; from jstyre@jstyre.com on Thu, Aug 17, 2000 at 02:26:24PM -0700 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, Aug 17, 2000 at 02:26:24PM -0700, James S. Tyre wrote: > With everyone paying attention to the ruling itself, some may not have > noticed that the latest slashdot interview, "Ask the DeCSS legal team", > went up moments after the announcement of the ruling. > http://slashdot.org/article.pl?sid=00/08/17/1836212&mode=thread James, thank you very much--for many things. First, you tirelessly contributed so much to the OpenLaw discussion yourself, and helped those of us who are not attorneys understand the law. Second, you have seen that computers and the Internet can be used for better purposes than either (a) streaming "intellectual property" from the corporations such as the movie studios, and (b) pirating such content--neither of which has to do with either (c) copyright law nor (d) the proper use of the Internet "to promote the progess of science and the useful arts" in our political democracy. Let's keep at it, so that more lawyers, economists, and others can make this forum work even better--and we win on appeal! Then the law, and copyright rightly considered, will also win. The alternative is pretty scary. Let's sell or give away all our "intellectual property" to Hollywood or Westlaw, and prohibit citizens from using the Internet to express their own views. From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 17 19:17:18 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA06054 for dvd-discuss-outgoing; Thu, 17 Aug 2000 19:17:18 -0400 Received: from smtp03.primenet.com (smtp03.primenet.com [206.165.6.133]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id TAA06051 for ; Thu, 17 Aug 2000 19:17:12 -0400 Received: (from daemon@localhost) by smtp03.primenet.com (8.9.3/8.9.3) id QAA00772 for ; Thu, 17 Aug 2000 16:16:06 -0700 (MST) Received: from sessions.phx.primenet.com(206.132.239.114), claiming to be "heorot.lumbercartel.com" via SMTP by smtp03.primenet.com, id smtpdAAAQcaWCb; Thu Aug 17 16:15:57 2000 Received: from frankenstein.lumbercartel.com (IDENT:dcs@frankenstein.lumbercartel.com [192.168.6.2]) by heorot.lumbercartel.com (8.9.3/8.8.7) with SMTP id QAA24808 for ; Thu, 17 Aug 2000 16:16:55 -0700 From: "D. C. Sessions" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] the purpose of creating DeCSS Date: Thu, 17 Aug 2000 16:11:43 -0700 X-Mailer: KMail [version 1.0.29] Content-Type: text/plain References: In-Reply-To: MIME-Version: 1.0 Message-Id: <00081716165400.13575@frankenstein.lumbercartel.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, 17 Aug 2000, Ingo Molnar wrote: > "Moreover, the Court does not credit Mr. Johansen's testimony that he > created DeCSS solely for the purpose of building a Linux player." > > is there any other explanation for it? DVD rippers existed before DeCSS, > DVD players existed on Windows, why the heck would Mr. Johansen have done > this if not for Linux? Mr. Johansen had been on the LiViD mailing list > long before he created DeCSS. The reverse engineering exception has no > meaning under Kaplan's interpretation, because *any* reverse engineering > has a definitive 'fame' value as well. Just make a protection system > highprofile enough and it cannot be reverse engineered??? Well, for that matter one could argue that this is an impossible standard since human motivations are never unmixed. I design for a living, true; however I also do it because it's fun and I think that there is some social benefit to the products I contribute to. (In truth, fun is indisputably #1) This is a point that judges actually _do_ understand, since most of them are on the bench for more than the paycheck. (Thinking in particular of a childhood friend who took a position on a State Court of Appeals at considerable personal cost. Why? In more or less equal part because it was Worth Doing and because it's a fun job.) -- | Microsoft: "A reputation for releasing inferior software will make | | it more difficult for a software vendor to induce customers to pay | | for new products or new versions of existing products." | +----------- D. C. & M. V. Sessions ----------+ From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 17 19:25:15 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA06824 for dvd-discuss-outgoing; Thu, 17 Aug 2000 19:25:15 -0400 Received: from smtp1.atcominfo.com ([199.106.231.8]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id TAA06821 for ; Thu, 17 Aug 2000 19:25:13 -0400 Received: from mit.edu ([216.112.148.92]) by smtp1.atcominfo.com (Post.Office MTA v3.5.3 release 223 ID# 0-0U10L2S100V35) with ESMTP id com; Thu, 17 Aug 2000 16:26:17 -0700 Message-ID: <3972A1B3.CA4D02CD@mit.edu> Date: Mon, 17 Jul 2000 02:03:34 -0400 From: Ravi Nanavati X-Mailer: Mozilla 4.7 [en] (Win98; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu, ravi_n@mit.edu Subject: [dvd-discuss] Kaplan on 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 I'm not doing this as well as I should because my Internet connection is bad and I can't read the decision, but I wanted to get this argument out there so that people can look at it and fill in the holes because I think it is an important argument. I think Kaplan has contradicted himself in this ruling. In this ruling, as I've gathered from what I've read on the list, he said that the reason DeCSS is circumvention is because the keys it uses to obtain CSS-encrypted movies were not obtained through the DVD CCA. He can't say that because, at trial, he ruled that authorization is a question of law not fact. The DVD CCA is not the copyright holder. If they are to be a legitimate channel of the copyright holder's authority then there need to be facts to establish this. If using the wrong keys is circumvention then there need to facts establishing how CSS keys transfer authority so thast we know when we're using the right keys and the wrong keys. Defense wanted to get into those issues at trial, and Kaplan said no because, at that time, authorization was a question of law, not fact. This contradiction alone IMO should be enough to get the defense with a new trial, since they were not allowed to ask questions about factual matters that formed the basis of the ruling. I also hope that this can help get us a trial with a different judge because I think Kaplan has shown "beyond a reasonable doubt" that his interpretation of the law is hopelessly biased towards the plaintiffs. (When they want some testimony excluded, authority is a matter of law, when it comes time for a favorable decision in the case, authority is a matter of fact. No arguments were made by either side on this point, so what other conclusion can be drawn?) - Ravi Nanavati From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 17 19:27:59 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA06956 for dvd-discuss-outgoing; Thu, 17 Aug 2000 19:27:59 -0400 Received: from hotmail.com (f334.law9.hotmail.com [64.4.8.209]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id TAA06953 for ; Thu, 17 Aug 2000 19:27:58 -0400 Received: from mail pickup service by hotmail.com with Microsoft SMTPSVC; Thu, 17 Aug 2000 16:27:23 -0700 Received: from 4.54.38.16 by lw9fd.law9.hotmail.msn.com with HTTP; Thu, 17 Aug 2000 GMT X-Originating-IP: [4.54.38.16] From: "Harold Eaton" To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] authority and "modified" players Date: Thu, 17 Aug 2000 19:27:23 EDT Mime-Version: 1.0 Content-Type: text/plain; format=flowed Message-ID: X-OriginalArrivalTime: 17 Aug 2000 23:27:23.0577 (UTC) FILETIME=[B2514A90:01C008A2] Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I've been thinking about the "two purchases" concept, and how it really breaks down for software players. First off, DeCSS works with computers that have DVD drives. These drives are manufactured under a DVD CCA license. But the drives don't necessarily have player keys in them (perhaps none do). So you have to buy a third product, a DVD player software. Now what constitutes an "authorized" DVD player on a computer. The player includes the drive, the OS, the video hardware, and the player software. Do *all* of these items require authority? Suppose we modify the OS, hack windows that is, do we lose authority? Or maybe we mod the video card, or use one of our own design? AFAIK, windows is not made under a DVD CCA license, and many video cards certainly are not. Suppose we install DoD Ripper on the machine, does that wipe out the authority? If modification of the "system" destroys authority then almost *no* computer-based DVD player could ever have authority, since who knows what sort of software will be installed, and whether the combination is on the magic "approved" list. Next question. My Fujitsu laptop came with a software DVD player by Fujitsu. Persumably I could also purchase the Xing player. (Thus obtaining a legal copy of the Xing player key). Can I not run DeCSS on my machine since I have purchased all of the components that convey authority? They are all installed on the machine, and I'd even be happy to load the licensed player into memory and leave it in its idle loop... If it is instead my act of initiating the movie decryption which needs to be authorized, it is clear that I am never authorized to view a DVD. That makes for a pretty persuasive case for DVDs/ computer DVD players/drives being sold fraudulently. Regardless, Kaplan has handed PERMANENT EXCLUSIVE RIGHTS to make DVD players to the trust formed by the MPAA. ________________________________________________________________________ Get Your Private, Free E-mail from MSN Hotmail at http://www.hotmail.com From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 17 19:37:37 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA07247 for dvd-discuss-outgoing; Thu, 17 Aug 2000 19:37:37 -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 TAA07220 for ; Thu, 17 Aug 2000 19:37:26 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id TAA01537 for dvd-discuss@eon.law.harvard.edu; Thu, 17 Aug 2000 19:44:47 -0400 Date: Thu, 17 Aug 2000 19:44:42 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] the purpose of creating DeCSS Message-ID: <20000817194441.D1080@eldritchpress.org> References: Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: ; from Ray@clearway.com on Thu, Aug 17, 2000 at 05:38:24PM -0400 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, Aug 17, 2000 at 05:38:24PM -0400, Leland Ray wrote: > > I think this is a huge statutory flaw, because it says in effect > that there must only be one motive for writing computer code > in order to take advantage of the exception. In fact, Kaplan > points out that there is evidence of a lot of motives for > writing DeCSS. He does not deny that one of them was to > create a Linux player. >... > -----Original Message----- > From: Ingo Molnar [mailto:mingo@elte.hu] > > "Moreover, the Court does not credit Mr. Johansen's testimony that he > created DeCSS solely for the purpose of building a Linux player." > > is there any other explanation for it? DVD rippers existed before DeCSS, > DVD players existed on Windows, why the heck would Mr. Johansen have done > this if not for Linux? Mr. Johansen had been on the LiViD mailing list > long before he created DeCSS. The reverse engineering exception has no > meaning under Kaplan's interpretation, because *any* reverse engineering > has a definitive 'fame' value as well. Just make a protection system > highprofile enough and it cannot be reverse engineered??? The problem is that the court (and its interpretation of 1201) would require that if DeCSS has *any* use that is illegal, then *all* use must be illegal, and it must be prohibited even before being used. Even if reverse engineering is currently legal, it makes no difference--the technology is illegal no matter how it was derived. So then the court puts the onus on defense to prove that legal fair use is the *only* purpose and *use* of DeCSS. I agree that might be a proper interpretation of that portion of 1201. However, it is a foolish one, and one that opens the decision to overturn on appeal. First, Congress did not at all intend that fair use be legal *only* if some technology can be used *only* for fair use--in that case, the whole law would be silly, because as the court points out, Congress passed the law and it obviously cannot have intended it to be self-contradictory, and so there must be some reason for the clauses preserving fair use. Fair use has been always construed in the past as one use of a work, never *all* uses of a work. Second, if that interpretation of 1201 is correct, the law is obviously self-contradictory *and* unconstitutional. Because what the law really says is that the *technology* is illegal, not that the *use* of the technology is illegal--there can by definition be no fair use allowed by this law--unless one can do it in one's head, like Mozart, or somehow the use is authorized by the copyright holder--and we have no evidence how this authority model operates. The logic of *all* and *any* is circular--it can never be defined properly here, because it depends on some external authority that one can never find. So a proper analogy would be what I heard on NPR this evening-- Judge Kaplan would have to ban Xerox machines because they have *some* use that is illegal--in order for Xerox machines to be legal, they would not only have to be *primarily* or *solely* intended for fair use, but they would have to be constructed in such a way that *any* use that is not fair would somehow be technologically impossible--they would have to lock out *any* and *all* unfair use. But this is not something that a machine can do-- there is no way a Xerox machine can determine if the use is fair or not, when a user copies a work. That is a legal question, and one would hope that Judge Kaplan's new enthusiasm for computer technology has not extended so far that he thinks they can decide legal questions for him! But, even factually, the court is wrong. Not only did Johansen say that he had this purpose solely in mind when he created the program (and this was not even disputed in cross examination-- the movie studios could care less--they assume LiViD is illegal), but also one has to consider not just the technology of DeCSS, but the way it is used. If fair use is allowed by first sale, using DeCSS instead of a Sony player is not only just as fair, but it is just as fair by the very fact that *the user has to have a valid DVD and an authorized player* in order to use DeCSS at all. In that sense the *only* use for DeCSS is *fair*, whether or not the composer of the program intended that or not, or the movie studios like that or not. In order to refute that, plaintiffs must produce some authority model that is not associated with first sale of the disc and player. And then that logically opens their case to the antitrust points we have discussed here. The alternative is scary. Not only would using a computer virus in an illegal way be illegal, but the very reporting of a computer virus would be illegal, no matter if the *sole intent* of reporting it was to fix some security problem. We would have to depend on Hollywood for video content, and Microsoft for all computer code. The court should strike down the DMCA. Returning it to Congress for a rewrite does nothing--the production of the law is likely to be just as confused the next time as it was last, considering the political and economic forces in play. If the courts don't tell Congress what is wrong (unconstitutional) then Congress will do nothing. From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 17 19:59:57 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA08317 for dvd-discuss-outgoing; Thu, 17 Aug 2000 19:59:57 -0400 Received: from prserv.net (out4.prserv.net [32.97.166.34]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id TAA08314 for ; Thu, 17 Aug 2000 19:59:56 -0400 Received: from patris.bel-kwinith.org ([32.101.160.21]) by prserv.net (out4) with SMTP id <2000081723594823900ln82fe>; Thu, 17 Aug 2000 23:59:50 +0000 MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Date: Thu, 17 Aug 2000 19:58:55 -0400 (EDT) From: rst@alum.mit.edu To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Quotes from Kaplan X-Mailer: VM 6.43 under 20.4 "Emerald" XEmacs Lucid Message-ID: <14748.31281.716253.904652@patris.bel-kwinith.org> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Here are a few quotes that jumped out at me on a first run through Kaplan's opinion (aside, of course, from the peculiar contention that since certain forms of speech and political assassination are both expressive acts, the one may be as subject to regulation as the other). Kaplan's text preceded by "K>": K> Further, the House Commerce Committee made clear that measures based K> on encryption or scrambling "effectively control" access to copyrighted K> works, although it is well known that what may be encrypted or scrambled K> often may be decrypted or unscrambled. As CSS, in the ordinary course K> of its operation --- that is, when DeCSS or some other decryption program K> is not employed --- "actually works" to prevent access to the protected K> work, it "effectively controls access" within the contemplation of the K> statute. --- p. 37 --- This implies that *any* use of encryption technology is, ipso facto, access control --- never mind that encryption technology is also used for, e.g., digital signature techniques, where the content that they are applied to may in fact be public knowledge. (A digital signature is a way of verifying that one is, in fact, the author of a particular published document). This "encryption === access control" argument is the plaintiffs' *entire* argument about why the DMCA applies to CSS technology at all. An appeal of this decision might well want to spend some time attacking it directly. K> By the admission of both Jon Johansen, the programmer who principally K> wrote DeCSS, and defendant Corley, DeCSS was created solely for the K> purpose of decrypting CSS --- that is all it does. Hence, absent K> satisfaction of a statutory exception, defendants clearly violated K> Section 1201(a)(2)(A) by posting DeCSS to their web site. --- p. 38 --- Again, decryption is equated with circumvention. Others have commented here. [on use controls:] K> The first element of the balance [between rights of copyright owners K> and the public] was the careful limitation of Section 1201(a)(1)'a K> prohibition of the act of circumvention to the act itself so as K> not to "apply to subsequent actions of a person once he or she has K> obtained authorized access to a copy of a [copyrighted] work" (fn. K> Judiciary Comm. rept. 18). By doing so, it left "the traditional K> defenses to copyright infringement, including fair use, ... fully K> applicable" provided "the access is authorized." (fn. ibid) --- p. 47 --- note that CSS license agreements can and do impose use controls, on player manufacturers, and through them, on end users, in direct violation of this stated Congressional intent. Unfortunately, Kaplan's conduct of the trial may have hindered this fact from coming into evidence. [on Sony v. Universal --- the Betamax case] K> Sony involved a construction of the Copyright Act that has been K> overruled by the later enactment of the DMCA to the extent of any K> inconsistency between Sony and the new statute. --- p. 48 --- note conflict between this analysis and the stated legislative intent to preserve Sony with full force. (Perhaps this could have gotten more play in the defense brief). [On rejecting fair use arguments in this case:] K> To begin with, all or substantially all motion pictures available K> on DVD are available also on videotape. In consequence, anyone K> wishingto make lawful use of a particular movie may buy or rent K> a videotape, play it, and even copy all or part of it K> with readily available equipment. But even if movies were available K> only on DVD, as someday may be the case, the impact on lawful use K> would be limited. Compliant DVD players permit one to view or K> listen to a DVD movie without circumventing CSS in any prohibited K> sense. The technology permitting manufacture of compliant DVD players K> is available to anyone on a royalty-free basis and at modest cost, K> so CSS raises no technological barrier to their manufacture. Hence, K> those wishing to make lawful use of copyrighted movies by viewing K> or listening to them are not hindered in doing so in any material K> way by the anti-trafficking provision of the DMCA. K> K> Nor does the DMCA materially affect quotation of language from K> CSS-protected movies. Anyone with access to a compliant DVD player K> may play the movie and write down or otherwise record teh sound K> for the purpose of quoting it an another medium --- p. 76 --- Note that much of this argument was prefigured at the Stanford hearing, when Robin Gross tried to bring up the argument and faced more or less the same set of hypotheticals. [and further, on the applicability of fair use arguments generally] K> Hence, the question whether Section 1201(a)(2) as applied here K> substantially affects rights, much less constitutionally protected K> rights, of members of the "fair use community" cannot be decided K> in bloc, without consideration of the circumstances of each member, K> or similarly situated groups of members. Thsu, the prudential concern K> with ensuring that constitutional questions be decided only when the K> facts before the Court so require counsels against permitting K> defendants to mount an overbreadth challenge here. --- p. 78 --- In other words, he's saying here that the argument that CSS impedes fair use is moot until an actual instance of CSS impeding some real person's fair use is in evidence. Which is not the case here, yet; any fair use argument in *this* case has to be based on hypotheticals. Sigh... rst From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 17 20:08:09 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA08612 for dvd-discuss-outgoing; Thu, 17 Aug 2000 20:08:09 -0400 Received: from smtp05.primenet.com (smtp05.primenet.com [206.165.6.135]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id UAA08609 for ; Thu, 17 Aug 2000 20:08:06 -0400 Received: (from daemon@localhost) by smtp05.primenet.com (8.9.3/8.9.3) id RAA02385 for ; Thu, 17 Aug 2000 17:08:05 -0700 (MST) Received: from sessions.phx.primenet.com(206.132.239.114), claiming to be "heorot.lumbercartel.com" via SMTP by smtp05.primenet.com, id smtpdAAAuPaOGe; Thu Aug 17 17:07:52 2000 Received: from frankenstein.lumbercartel.com (IDENT:dcs@frankenstein.lumbercartel.com [192.168.6.2]) by heorot.lumbercartel.com (8.9.3/8.8.7) with SMTP id RAA25129 for ; Thu, 17 Aug 2000 17:07:31 -0700 From: "D. C. Sessions" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Kaplan on authority Date: Thu, 17 Aug 2000 16:52:06 -0700 X-Mailer: KMail [version 1.0.29] Content-Type: text/plain References: <3972A1B3.CA4D02CD@mit.edu> In-Reply-To: <3972A1B3.CA4D02CD@mit.edu> MIME-Version: 1.0 Message-Id: <00081716570102.13654@frankenstein.lumbercartel.com> Content-Transfer-Encoding: 8bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sun, 16 Jul 2000, Ravi Nanavati wrote: NB: clock error. People might want to check last month's messages. > I'm not doing this as well as I should because my Internet connection is > bad and I can't read the decision, but I wanted to get this argument > out there so that people can look at it and fill in the holes because > I think it is an important argument. > > I think Kaplan has contradicted himself in this ruling. > In this ruling, as I've gathered from what I've read on the > list, he said that the reason DeCSS is circumvention is > because the keys it uses to obtain CSS-encrypted movies > were not obtained through the DVD CCA. He can't say > that because, at trial, he ruled that authorization is a question > of law not fact. The DVD CCA is not the copyright holder. > If they are to be a legitimate channel of the copyright holder's > authority then there need to be facts to establish this. If using > the wrong keys is circumvention then there need to facts establishing > how CSS keys transfer authority so thast we know when we're using > the right keys and the wrong keys. Defense wanted to get into those > issues at trial, and Kaplan said no because, at that time, authorization > was a question of law, not fact. This contradiction alone IMO should > be enough to get the defense with a new trial, since they were not > allowed to ask questions about factual matters that formed the basis > of the ruling. I also hope that this can help get us a trial with a different > judge because I think Kaplan has shown "beyond a reasonable doubt" > that his interpretation of the law is hopelessly biased towards the plaintiffs. > (When they want some testimony excluded, authority is a matter > of law, when it comes time for a favorable decision in the case, authority > is a matter of fact. No arguments were made by either side on this point, > so what other conclusion can be drawn?) Actually, there is some indication here of more than bias. Would the plaintiffs have actually left such a critical issue to chance -- not even suggesting a legal basis to the Court -- if they didn't know in advance that their brief would be made from the bench? In any case, the authority model presented in the decision has been gone over pretty thoroughly here and shot to doll rags. In fact, Kaplan seems to be using one of the less robust variants. Remarkable -- surely the plaintiffs at least monitor the list archive? -- | Microsoft: "A reputation for releasing inferior software will make | | it more difficult for a software vendor to induce customers to pay | | for new products or new versions of existing products." | +----------- D. C. & M. V. Sessions ----------+ From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 17 20:08:05 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA08604 for dvd-discuss-outgoing; Thu, 17 Aug 2000 20:08:05 -0400 Received: from smtp03.primenet.com (smtp03.primenet.com [206.165.6.133]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id UAA08601 for ; Thu, 17 Aug 2000 20:08:03 -0400 Received: (from daemon@localhost) by smtp03.primenet.com (8.9.3/8.9.3) id RAA19617 for ; Thu, 17 Aug 2000 17:06:58 -0700 (MST) Received: from sessions.phx.primenet.com(206.132.239.114), claiming to be "heorot.lumbercartel.com" via SMTP by smtp03.primenet.com, id smtpdAAAOJaOqM; Thu Aug 17 17:06:50 2000 Received: from frankenstein.lumbercartel.com (IDENT:dcs@frankenstein.lumbercartel.com [192.168.6.2]) by heorot.lumbercartel.com (8.9.3/8.8.7) with SMTP id RAA25175 for ; Thu, 17 Aug 2000 17:07:46 -0700 From: "D. C. Sessions" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] authority and "modified" players Date: Thu, 17 Aug 2000 16:58:48 -0700 X-Mailer: KMail [version 1.0.29] Content-Type: text/plain References: In-Reply-To: MIME-Version: 1.0 Message-Id: <00081717065703.13654@frankenstein.lumbercartel.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, 17 Aug 2000, Harold Eaton wrote: > I've been thinking about the "two purchases" concept, > and how it really breaks down for software players. > > First off, DeCSS works with computers that have DVD > drives. These drives are manufactured under a DVD CCA > license. But the drives don't necessarily have player > keys in them (perhaps none do). So you have to buy > a third product, a DVD player software. Now what > constitutes an "authorized" DVD player on a computer. > The player includes the drive, the OS, the video > hardware, and the player software. Do *all* of these > items require authority? Suppose we modify the OS, > hack windows that is, do we lose authority? Or maybe > we mod the video card, or use one of our own design? > AFAIK, windows is not made under a DVD CCA license, > and many video cards certainly are not. > > Suppose we install DoD Ripper on the machine, does that > wipe out the authority? If modification of the "system" > destroys authority then almost *no* computer-based DVD > player could ever have authority, since who knows what > sort of software will be installed, and whether the > combination is on the magic "approved" list. Pay no attention to the man behind the curtain. > Next question. My Fujitsu laptop came with a software DVD > player by Fujitsu. Persumably I could also purchase the > Xing player. (Thus obtaining a legal copy of the Xing > player key). Can I not run DeCSS on my machine since I > have purchased all of the components that convey authority? > They are all installed on the machine, and I'd even be > happy to load the licensed player into memory and leave > it in its idle loop... Irrelevant. The Court was quite clear that the question of infringement is separate from the question of trafficing in circumvention devices. In your example, the violation lies in the chain that led up to you having DeCSS, not in its use. (Kaplan had to take this line or else he would have been painting a giant "reverse me!" sign on his forehead.) As predicted, the plaintiffs are getting what they care most about: continued control of the player market. Despite all the handwringing, actual copying is not a concern to them. The real surprise was that Kaplan went so far out of his way to make their case for them. > If it is instead my act of initiating the movie decryption > which needs to be authorized, it is clear that I am never > authorized to view a DVD. > > That makes for a pretty persuasive case for DVDs/ computer > DVD players/drives being sold fraudulently. > > Regardless, Kaplan has handed PERMANENT EXCLUSIVE RIGHTS > to make DVD players to the trust formed by the MPAA. Yuppers. -- | Microsoft: "A reputation for releasing inferior software will make | | it more difficult for a software vendor to induce customers to pay | | for new products or new versions of existing products." | +----------- D. C. & M. V. Sessions ----------+ From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 17 20:40:47 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA10932 for dvd-discuss-outgoing; Thu, 17 Aug 2000 20:40:47 -0400 Received: from smtp04.primenet.com (smtp04.primenet.com [206.165.6.134]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id UAA10926 for ; Thu, 17 Aug 2000 20:40:45 -0400 Received: (from daemon@localhost) by smtp04.primenet.com (8.9.3/8.9.3) id RAA22062 for ; Thu, 17 Aug 2000 17:38:56 -0700 (MST) Received: from sessions.phx.primenet.com(206.132.239.114), claiming to be "heorot.lumbercartel.com" via SMTP by smtp04.primenet.com, id smtpdAAAOUaycR; Thu Aug 17 17:38:52 2000 Received: from frankenstein.lumbercartel.com (IDENT:dcs@frankenstein.lumbercartel.com [192.168.6.2]) by heorot.lumbercartel.com (8.9.3/8.8.7) with SMTP id RAA25251 for ; Thu, 17 Aug 2000 17:40:32 -0700 From: "D. C. Sessions" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Quotes from Kaplan Date: Thu, 17 Aug 2000 17:35:32 -0700 X-Mailer: KMail [version 1.0.29] Content-Type: text/plain References: <14748.31281.716253.904652@patris.bel-kwinith.org> In-Reply-To: <14748.31281.716253.904652@patris.bel-kwinith.org> MIME-Version: 1.0 Message-Id: <00081717402701.13684@frankenstein.lumbercartel.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, 17 Aug 2000, rst@alum.mit.edu wrote: > K> By the admission of both Jon Johansen, the programmer who principally > K> wrote DeCSS, and defendant Corley, DeCSS was created solely for the > K> purpose of decrypting CSS --- that is all it does. Hence, absent > K> satisfaction of a statutory exception, defendants clearly violated > K> Section 1201(a)(2)(A) by posting DeCSS to their web site. > --- p. 38 > --- Again, decryption is equated with circumvention. Others > have commented here. Perhaps not in this light: what is the "statutory exception" that applies to the production of a Sony DVD player? For, at least as much as DeCSS, it "was created solely for the purpose of decrypting CSS --- that is all it does." Again, maybe my understanding of the legal procedures is off but I thought that the parties to a suit were supposed to present the conflicting legal theories in court so that they could be rebutted. In this case, the plaintiffs seem to have left all of that for the judge to do after close of argument. -- | Microsoft: "A reputation for releasing inferior software will make | | it more difficult for a software vendor to induce customers to pay | | for new products or new versions of existing products." | +----------- D. C. & M. V. Sessions ----------+ From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 17 20:40:47 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA10931 for dvd-discuss-outgoing; Thu, 17 Aug 2000 20:40:47 -0400 Received: from smtp04.primenet.com (smtp04.primenet.com [206.165.6.134]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id UAA10924 for ; Thu, 17 Aug 2000 20:40:45 -0400 Received: (from daemon@localhost) by smtp04.primenet.com (8.9.3/8.9.3) id RAA22056 for ; Thu, 17 Aug 2000 17:38:55 -0700 (MST) Received: from sessions.phx.primenet.com(206.132.239.114), claiming to be "heorot.lumbercartel.com" via SMTP by smtp04.primenet.com, id smtpdAAAOuaacR; Thu Aug 17 17:38:50 2000 Received: from frankenstein.lumbercartel.com (IDENT:dcs@frankenstein.lumbercartel.com [192.168.6.2]) by heorot.lumbercartel.com (8.9.3/8.8.7) with SMTP id RAA25248 for ; Thu, 17 Aug 2000 17:40:31 -0700 From: "D. C. Sessions" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Quotes from Kaplan Date: Thu, 17 Aug 2000 17:30:26 -0700 X-Mailer: KMail [version 1.0.29] Content-Type: text/plain References: <14748.31281.716253.904652@patris.bel-kwinith.org> In-Reply-To: <14748.31281.716253.904652@patris.bel-kwinith.org> MIME-Version: 1.0 Message-Id: <00081717345900.13684@frankenstein.lumbercartel.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, 17 Aug 2000, rst@alum.mit.edu wrote: > K> Hence, the question whether Section 1201(a)(2) as applied here > K> substantially affects rights, much less constitutionally protected > K> rights, of members of the "fair use community" cannot be decided > K> in bloc, without consideration of the circumstances of each member, > K> or similarly situated groups of members. Thsu, the prudential concern > K> with ensuring that constitutional questions be decided only when the > K> facts before the Court so require counsels against permitting > K> defendants to mount an overbreadth challenge here. > > --- p. 78 > > --- In other words, he's saying here that the argument that CSS > impedes fair use is moot until an actual instance of CSS > impeding some real person's fair use is in evidence. Which > is not the case here, yet; any fair use argument in *this* > case has to be based on hypotheticals. Sigh... It's better than that. Because of the two-step process, there never WILL be a fair-use case. K and the Ps have carefully avoided touching 1201(a) because it *does* get into fair use. If they simply concentrate on keeping any rogue players from coming to market, it will be so difficult to exercise fair use that it won't be worth bringing any action under 1201(a). And 1201(b) can't be challenged -- depite its effects on fair use -- because it doesn't deal with infringement, just traffic. -- | Microsoft: "A reputation for releasing inferior software will make | | it more difficult for a software vendor to induce customers to pay | | for new products or new versions of existing products." | +----------- D. C. & M. V. Sessions ----------+ From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 17 20:59:22 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA11794 for dvd-discuss-outgoing; Thu, 17 Aug 2000 20:59:22 -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 UAA11791 for ; Thu, 17 Aug 2000 20:59:21 -0400 Received: from ip68.bedford2.ma.pub-ip.psi.net ([38.32.10.68]) by relay21.smtp.psi.net with smtp (Exim 3.13 #3) id 13PaVA-0002Fk-00 for dvd-discuss@eon.law.harvard.edu; Thu, 17 Aug 2000 20:59:16 -0400 From: Ron Gustavson To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] DMCA enters the terrible twos Date: Thu, 17 Aug 2000 20:52:53 -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 UAA11792 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu page 77 | 245 | The same point might be made with respect to copying of works upon which copyright has | expired. Once the statutory protection lapses, the works pass into the public domain. The | encryption on a DVD copy of such a work, however, will persist. Moreover, the combination | of such a work with a new preface or introduction might result in a claim to copyright in the | entire combination. If the combination then were released on DVD and encrypted, the | encryption would preclude access not only to the copyrighted new material, but to the public | domain work. As the DMCA is not yet two years old, this does not yet appear to be a | problem, although it may emerge as one in the future. Note that while the law is not yet two years old, some films aged 77 years and greater are being protected by CSS as we speak. __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 17 21:26:17 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA12549 for dvd-discuss-outgoing; Thu, 17 Aug 2000 21:26:17 -0400 Received: from smtp02.primenet.com (smtp02.primenet.com [206.165.6.132]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id VAA12546 for ; Thu, 17 Aug 2000 21:26:16 -0400 Received: (from daemon@localhost) by smtp02.primenet.com (8.9.3/8.9.3) id SAA05141 for ; Thu, 17 Aug 2000 18:24:09 -0700 (MST) Received: from sessions.phx.primenet.com(206.132.239.114), claiming to be "heorot.lumbercartel.com" via SMTP by smtp02.primenet.com, id smtpdAAAjDay4j; Thu Aug 17 18:23:59 2000 Received: from frankenstein.lumbercartel.com (IDENT:dcs@frankenstein.lumbercartel.com [192.168.6.2]) by heorot.lumbercartel.com (8.9.3/8.8.7) with SMTP id SAA25334 for ; Thu, 17 Aug 2000 18:25:56 -0700 From: "D. C. Sessions" To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Source code Date: Thu, 17 Aug 2000 18:03:56 -0700 X-Mailer: KMail [version 1.0.29] Content-Type: text/plain MIME-Version: 1.0 Message-Id: <00081718162500.13771@frankenstein.lumbercartel.com> Content-Transfer-Encoding: 8bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Interesting thought just occured. Hizzoner may have tripped onto his own punji stick here. On page 46 (II-C), second paragraph, he states "Most web pages are written in computer languages, chiefly HTML," Which by his own reasoning places HTML as a computer language, and again, within the reasoning of the decision, subject to the same minimal degree of Constitutional scrutiny as DeCSS source code. In the same paragraph he treats HTML as primarily functional, just as he treats DeCSS. Now following that line produces some VERY interesting conclusions. Certainly in _Reno_vs._American_Civil_Liberties_Union_ the USSC seems to have taken a rather strict view of the scrutiny that applies to HTML and linking. Which, since Kaplan treats them as equivalent .... -- | Microsoft: "A reputation for releasing inferior software will make | | it more difficult for a software vendor to induce customers to pay | | for new products or new versions of existing products." | +----------- D. C. & M. V. Sessions ----------+ From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 17 22:22:47 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA13139 for dvd-discuss-outgoing; Thu, 17 Aug 2000 22:22:47 -0400 Received: from world.std.com (root@world-f.std.com [199.172.62.5]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id WAA13136 for ; Thu, 17 Aug 2000 22:22:46 -0400 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 VAA26727 for ; Thu, 17 Aug 2000 21:53:38 -0400 (EDT) Mime-Version: 1.0 X-Sender: reinhold@world.std.com (Unverified) Message-Id: In-Reply-To: References: Date: Thu, 17 Aug 2000 21:53:30 -0400 To: dvd-discuss@eon.law.harvard.edu From: "Arnold G. Reinhold" Subject: Re: [dvd-discuss] the Fair Use doctrine 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 >Kaplan argues that DMCA preempts Fair Use: > >"Congress struck a balance. The compromise it reached, depending upon >future technological and commercial developments, may or may not prove >ideal." > >but isnt the Fair Use doctrine something that evolved from the First >Amendment? Didnt the Supreme Court rule that Fair Use as provided by the >Copyright Act walks the fine line of constitutionality, and that any >subsequent restriction on it (such as the DMCA) would be unconsitutional? > >Kaplan mentions this argument in his ruling, and argues that Congress >thought otherwise. But the Congress does not preempt the First >Amendment... > > Ingo Kaplan does not deny that there are potential First Amendment fair use issues here, but he ruled the defendants can't bring them up, and that others who are "members of the 'fair use community'" will have to raise them. See p. 74 Arnold Reinhold From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 17 22:38:46 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA13276 for dvd-discuss-outgoing; Thu, 17 Aug 2000 22:38:46 -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 WAA13273 for ; Thu, 17 Aug 2000 22:38:34 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id WAA01700 for dvd-discuss@eon.law.harvard.edu; Thu, 17 Aug 2000 22:45:57 -0400 Date: Thu, 17 Aug 2000 22:45:52 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] DMCA enters the terrible twos Message-ID: <20000817224552.E1080@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 Thu, Aug 17, 2000 at 08:52:53PM -0400 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, Aug 17, 2000 at 08:52:53PM -0400, Ron Gustavson wrote: > page 77 > > | 245 > | The same point might be made with respect to copying of works upon which copyright has > | expired. Once the statutory protection lapses, the works pass into the public domain. The > | encryption on a DVD copy of such a work, however, will persist. Moreover, the combination > | of such a work with a new preface or introduction might result in a claim to copyright in the > | entire combination. If the combination then were released on DVD and encrypted, the > | encryption would preclude access not only to the copyrighted new material, but to the public > | domain work. As the DMCA is not yet two years old, this does not yet appear to be a > | problem, although it may emerge as one in the future. > > Note that while the law is not yet two years old, some films aged 77 years > and greater are being protected by CSS as we speak. footnote 159 on page 41 also refers to this point: "Indeed, as many have pointed out, technological measures of controlling access to works create a risk, depending upon future technological and commercial developments, of limiting access to works that are not protected by copyright such as works upon which copyright has expired. See... Nimmer..Travis..Benkler." [I wonder how Yochai Benkler feels about this citation!] I find it strange that Kaplan did not consider this question and provide a more sound answer. He seems to think that the MPAA bought the DMCA and that is all he has to consider is the effect of DeCSS on the DVD-CCA monopoly. And that if he simply puts a footnote to some idea it effectively dismisses it. But already, as I pointed out a few days ago, the DMCA is being applied to other works, which are not copyrighted. According to Judge Kaplan's interpretation of 1201(b), it appears that I would be in violation of the law if I "traffficked" in any code or instructions to "circumvent" Microsoft's encryption technology designed to "control access" to works first printed in 1920 and now published under the encryption of Microsoft Reader. This also goes to respond to his refusal to consider the "overbreadth" defense. His decision does not rule out a possible suit by me or others against Microsoft, but it does put into question whether an amicus brief on this very matter would be heard. I would prefer to join with Corley on appeal rather than go to the great expense and risk (five year jail term, for example) of actually distributing a technique to "circumvent" and of then defending myself. The overbreadth paragraphs seem to me sourly cynical--he points out that the plaintiffs did not try to sue anyone else. He fails to mention that The New York Times links. Well, there are so many things to comment on that I'll have to wait for the numbered-line edition, since I can't copy from the PDF file. Does anybody else get depressed when reading decisions like this? Or is only because I am half-listening to Gore's acceptance speech at the same time, wondering if it is really a good idea to try to live in this stupid society? From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 17 23:19:54 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA14101 for dvd-discuss-outgoing; Thu, 17 Aug 2000 23:19:54 -0400 Received: from thud.reric.net (sepp-host210.dsl.visi.com [209.98.241.210]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id XAA14098 for ; Thu, 17 Aug 2000 23:19:53 -0400 Received: (from eds@localhost) by thud.reric.net (8.9.3/8.8.7) id WAA16230 for dvd-discuss@eon.law.harvard.edu; Thu, 17 Aug 2000 22:19:47 -0500 Date: Thu, 17 Aug 2000 22:19:47 -0500 From: Eric Seppanen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Kaplan Enjoins 2600 from Posting and Linking Message-ID: <20000817221947.A16157@thud.reric.net> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <20000817145058.A15049@thud.reric.net> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1us In-Reply-To: <20000817145058.A15049@thud.reric.net>; from eds@reric.net on Thu, Aug 17, 2000 at 02:50:58PM -0500 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, Aug 17, 2000 at 02:50:58PM -0500, Eric Seppanen wrote: > > Now the MPAA has an avenue to go around bulling anyone offering the LiVid > project files, simply by making an argument that they're operating in > conjunction with 2600, and 2600 has been enjoined from posting _any_ CSS > code, not just the infamous DeCSS.exe. Huh. Went and got myself quoted in Wired: http://www.wired.com/news/politics/0,1283,38287,00.html That'll teach me to go off half-cocked. Of course, I meant "bullied", not "bulled" :) What a way to get slapped for not spell-checking- get your typos immortalized in a widespread news article :) Oh, and, in case anyone else feels like quoting my "irate posting"-- It should be pointed out that I'm not a lawyer, and I have no way of actually knowing whether Kaplan's decision will spur an attack on LiViD in the way I mention. But if my ranting is somehow accurate and this decision does provide an avenue for an attack on LiViD (or any other unlicensed DVD player implementation), I think I'm going to hit myself *hard* for not having tried harder to bring this to the defense's attention. Eric From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 18 00:30:37 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA15753 for dvd-discuss-outgoing; Fri, 18 Aug 2000 00:30:37 -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 AAA15750 for ; Fri, 18 Aug 2000 00:30:35 -0400 Received: by aero.org id <17094-5>; Thu, 17 Aug 2000 21:30:29 -0700 Received: from mhultra.aero.org(130.221.88.102) via SMTP by aero.org, id smtpdAAAa15955; Thu Aug 17 21:30:25 2000 Received: from ladir01.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Thu, 17 Aug 2000 21:30:05 -0700 Subject: Re: [dvd-discuss] Kaplan Rules OR did He? To: dvd-discuss@eon.law.harvard.edu From: Michael.A.Rolenz@aero.org Message-Id: X-MIMETrack: Serialize by Router on ladir01/AeroNet/Aerospace/US(Release 5.0.3 |March 21, 2000) at 08/17/2000 09:30:06 PM MIME-Version: 1.0 Content-type: text/plain; charset=iso-8859-1 Date: Thu, 17 Aug 2000 21:30:28 -0700 Content-Transfer-Encoding: 8bit X-MIME-Autoconverted: from quoted-printable to 8bit by eon.law.harvard.edu id AAA15751 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Kaplan seems to have ruled merely on a basis of law. DMCA says X. Defendants did X. THerefore Defendants are Guilty. What may be interesting is that I would not discount the possibility that Kaplan want to sent this up the appelate chain as fast as he can. Appeals are based upon trial errors and he expressed a desire for a good trial record. So in this case the appeal is important but only can be based upon the trial record. If there are no errors then, any appeal to the supreme court must be based upon Constitutional Issues. Having a good trial record may not keep that stuck at lower levels for long periods. IANAL so others [Wendy in particular] may enlighten us on this possibility. Kaplan my have felt compelled to rule on Law...but also didn't want to deal withthe other nasty issues. [Let's see if the NYTImes has the guts to keep the links on their site or if their parent company whispers in their editors ear "you are hurting our profits...now it is time for you to stop being a newspaper but the proper corporate rag that we desire...but keep up that gutsy reporting of the screaming hoards of hackers who are lusting after destroying the computing infrastructure of the world and destroying civilization as we know it...] The question is what to do now? My recommendation is change the rules on the plaintiffs. As Kaplan pointed out, it is up to Congress to fix these matters by writing laws that are clearly understood and are not contradictory. Like many I tire of the courts overturning laws but quite frankly Congress should stop passing a new law everytime something "bad" happens and they want to get their name in the papers as having solved the "badness" by passing a new law which does nothing except create more transgressors....in this case according to the DMCA. The defendants are now Traffickers in circumvision which puts them along side the traffickers of drugs and pornography...Today's blue law was yesterday's hot issue...[As an aside, does anybody know if it's illegal to play croquet wearing funny costumes in public in Talmadge Ohio...I had several friends who flaunted that law for years.] Congress has asked the commerce dept to provide comments on DMCA. THe Reply comments are due in September. Several here got comments in before the deadline [MeaCulpa..MeaCulpa], one of these was Time Warner. Reply and comment on Time Warner. [IMHO, their rhetoric was a marvel. Just the right amounts of obfuscation, fighting words, and position shifting.]. This case is the first case and Congress should be told what is WRONG about it. If it's too late to right this one totally, then at least others can be stopped. Of intererst is that Time Warner does NOT want public debate. Why should they? They have nothing to gain since they got the DMCA passed and a lot to loose if people present cogent arguments against it...so WRITE. Put any thoughts you can into PDF format and send them off. As Stephen Hopkins is reputed to put it once put it "I"ve never heard of an issue yet that couldn't be talked about ..Hell YES " ============================ This is the text of the Time Warner response to the request for comments ============================== Time Warner welcomes the opportunity to respond to the inquiry by the Copyright Office and the National Telecommunications and Information Administration regarding the possible effects of Title I of the DMCA on the first sale doctrine as codified in Section 109 of the Copyright Law. In order to deal adequately with the issues raised by the Request for Comment, it is necessary to understand the basis for and the limitations of the first sale doctrine. The first sale doctrine, in its origin and in its current statutory existence, has as its underlying purpose the prevention of using the Copyright Law to impose price or other conditions on the ability of the owner of a copy of a work to dispose of that copy. The first sale doctrine does so in very simple and clear terms: it provides an exception to the right of distribution granted in Section 106(3). It provides no other exception to the rights granted by Section 106. In particular, it does not provide any exception to the exclusive right of reproduction. Moreover, the exception with respect to the right of distribution is limited to copies "lawfully made under this title". Since under the first sale doctrine the copy owner has only the right to transfer possession of the copy and no right to make or distribute additional copies, the first sale doctrine is properly applied only when a particular copy of a work changes hands. Two persons cannot have simultaneous possession of a copy. Transferring possession of a copy means giving up possession. If the giver and receiver both have copies, then the scope of the first sale doctrine has been exceeded. Thus properly understood, the first sale doctrine applies not only to traditional media in which works are fixed, but also to tangible digital media, the most prominent being optical disks containing software, sound recordings and motion pictures. The purchaser of a DVD copy of a movie or a CD copy of a music album owns the chattel involved and may, under the first sale doctrine, transfer possession of it freely. The purchaser may not, however, make additional copies by virtue of the first sale doctrine. In short, the fact that the tangible medium contains works embodied in digital form does not affect the application of the first sale doctrine. It applies in the same manner digital to DVD and analog, i.e., non-digital VHS copies of a movie. It is clear that Section 109 does not apply to works distributed by transmission because application of Section 109 to such works would involve both the reproduction of the work (as to which no exception is provided and, accordingly, the copy being transferred is not "lawfully made") as well as its distribution. Secondly, the owner of a copy of the work would not be disposing of the possession of that copy. Some argue that the first sale doctrine must be expanded to apply to works purveyed by online transmission. They advocate a "digital first sale doctrine". But as discussed above, the first sale doctrine is not a digital or non-digital doctrine. It is a doctrine that distinguishes possessory personal property rights from copyrights. When phrases like "digital first sale doctrine" are used, at least by some, the intent is not an application of the first sale doctrine to digital works, but a wholesale expansion of the first sale doctrine in derogation of the rights of copyright owners. To take a newsworthy example, when the owner of a lawful copy of a CD "rips" a song into a digital MP3 file and then transmits that file to one or more friends, the first sale doctrine cannot be invoked to provide legal justification for the reproduction involved and the multiple resulting copies. And the first sale doctrine is hardly applicable when, in the Napster-type context, an individual makes copies available to the world, thus engaging in public distribution of the works involved. 2 By keeping the first sale doctrine grounded in the transfer of possession of tangible objects, we keep the first sale doctrine true to its purpose: permitting a single copy of a work to change hands. As noted by William F. Patry in his Copyright Law and Practice, Volume II, footnote 37, in discussing what the Europeans call the "exhaustion" doctrine: "The rationale behind the exhaustion of authorized material copies - the expectations of consumers or other possessors of the copies that they be able to dispose of those copies as they wish - does not apply to immaterial distributions by television broadcasts or cable and satellite transmissions." That rationale applies with equal, indeed, greater force to digital transmissions. If not grounded in transfer of tangible objects, the first sale doctrine would no longer be a practical, contained limitation on the distribution right with respect to "a particular copy or phonorecod lawfully made under this title"; it would instead open the door to elimination of the reproduction right as well as of the distribution right by permitting creation and distribution of a potentially unlimited number copies. The first sale doctrine should not be distorted into a vehicle for permitting unauthorized copying and distribution. As stated above, the first sale doctrine, whether in an analog or a digital world has a particular function, i.e., to prevent restraints of alienation of particular "lawfully made" copies by the owners thereof. That policy can continue in the digital world (see, for example, footnote 1 below). There is no social or economic rationale for altering that policy to permit unlimited reproduction and distribution of protected works by owners of a single copy. Indeed, any such alteration would deal a fatal blow to copyright protection. Turning to the questions posed in the Request For Public Comment: (a) What effect, if any, has the enactment of prohibitions on circumvention of technological protection measures had on the operation of the first sale doctrine? None. Technical protection measures do not stand in the way of a user becoming "the owner of a particular copy or phonorecord lawfully made under this title." Once having acquired such a "copy or phonorecord", the user may "dispose" of it pursuant to Section 109. (b) What effect, if any, has the enactment of prohibitions on falsification, alteration or removal of copyright management information had on the operation of the first sale doctrine? No effect has been discerned by us or brought to our attention. (c) What effect, if any, has the development of electronic commerce and associated technology had on the operation of the first sale doctrine? As set forth above, application of the first sale doctrine in electronic commerce and/or digital transmissions generally is potentially of huge danger to content owners. Examination of the purpose of the first sale doctrine reveals, as set forth above, that the doctrine is limited to avoiding restraints on alienation of tangible copies "lawfully made". (d) What is the relationship between existing and emergent technology, on one hand, and the first sale doctrine, on the other? 3 The first sale doctrine was developed with respect and applied to tangible copies which are, of course, the carriers of much of the copyrighted works to which we have become accustomed under the existing technology. That doctrine will continue to be applicable to tangible copies made under authority of the copyright owners whatever the nature of the technology such as CDs and DVDs. To the extent, however, that emerging technology deals not with tangible copies but with streaming and/or downloading of digitized programming, the first sale doctrine neither can nor should have any application.1 (e) To what extent, if any, is the first sale doctrine related to, or premised on, particular media or methods of distribution? The first sale doctrine is related to, premised on and requires for its application tangible copies lawfully made and distributed by authority of the copyright owner. (f) To what extent, if any, does the emergence of new technologies alter the technological premises (if any) upon which the first sale doctrine is established? For the reasons set forth above, the emergence of new technology does not and should not alter the premises upon which the first sale doctrine is established. (g) Should the first sale doctrine be expanded in some way to apply to digital transmissions? Why or why not? For the reasons set forth above, definitely not. Expansion beyond transfer of possession of a particular copy in a tangible medium will seriously threaten the reproduction right and the distribution right. The first sale doctrine should be kept true to its purpose. Exemptions from copyright must not be obtained through distortion of the first sale doctrine. (h) Does the absence of a digital first sale doctrine under present law have any measurable effect (positive or negative) on the marketplace for works in digital form? The absence of a "digital first sale doctrine" has the positive effect of encouraging the growth of markets for works in digital form. Because content owners are not faced with the dangers that would result from application (in our view, misapplication) of the first sale doctrine to digital transmissions (as described above), content owners are encouraged to make their works available in digital form. They can make those works available for downloading, for streaming and for whatever other new technology develops in a variety of pricing and other arrangements so as to meet diverse consumer needs and desires. Misapplying the first sale doctrine to these businesses would quickly discourage them. Time Warner will not, at this time, respond to the issues raised with respect to Section 117 but respectfully asks to reserve the right to submit Reply Comments with respect to both Section 117 and Section 109 if it believes that it is necessary to do so. 1 We note that the initial downloading of a copy, from an authorized source to a purchaser's computer, can result in lawful ownership of a copy stored in a tangible medium. If the purchaser does not make and retain a second copy, further transfer of that particular copy on such medium would fall within the scope of the first sale doctrine. 4 Time Warner does not believe that hearings are necessary with respect to the issues regarding Section 109. With regard to the issues raised concerning Section 117, Time Warner respectfully asks to respond to the question about the usefulness of hearings after it has had an opportunity to review the comments and Reply Comments. As to both Sections, Time Warner respectfully asks for an opportunity to participate if hearings are held. These Comments are submitted by: Bernard R. Sorkin Senior Counsel Time Warner Inc. 75 Rockefeller Plaza New York, NY 10019 Tele: (212) 484-8915 Fax: (212) 258-3006 E-mail: Bernard.Sorkin@twi.com From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 18 06:30:10 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id GAA18120 for dvd-discuss-outgoing; Fri, 18 Aug 2000 06:30:10 -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 GAA18117 for ; Fri, 18 Aug 2000 06:30:09 -0400 Received: from jy01 (user-2iniinb.dialup.mindspring.com [165.121.74.235]) by blount.mail.mindspring.net (8.9.3/8.8.5) with SMTP id GAA32621 for ; Fri, 18 Aug 2000 06:19:19 -0400 (EDT) Message-Id: <200008181019.GAA32621@blount.mail.mindspring.net> X-Sender: jya@pop.pipeline.com X-Mailer: QUALCOMM Windows Eudora Pro Version 4.0 Date: Fri, 18 Aug 2000 06:13:19 -0400 To: dvd-discuss@eon.law.harvard.edu From: John Young Subject: Re: [dvd-discuss] Kaplan Decision for MPAA In-Reply-To: <200008171753.NAA13955@blount.mail.mindspring.net> References: <20000811060959.14254.qmail@web123.yahoomail.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 Kaplan's overt prejudice from day one surely diminished respect for federal justice. I had not seen such behavior before in New York. And when the prejudice was flaunted increasingly during trial it occurred to me that he was diabolically aiming to show just how biased the DMCA is toward the copyright industry. A kind of reverse or rather perverse judgmentalism to send a message to Congress and its lobbyists that they could not get away with racketeer influenced organized crime, not on his watch. But perhaps, I now think, I was being too understanding of Kaplan, too forgiving of his one-sided behavior. For it is possible, I tell myself, that Kaplan was showing a modern face of old time corrupt justice, that the fix was in from day one. That would also account for his implacable opposition to the defense, the lackadaisical presentations of the plaintiffs, his repeated rulings in favor of the plaintiffs, the personal attacks on Garbus by Kaplan during trial, Kaplan's rudeness toward Robin Gross and Allonn Levy at the PI hearing, and the contempt he displays in his decision for the defendants and disparagement of supporters. Kaplan blatantly uses the DMCA to cloak his foregone conclusions as in days of old judges quoted the law to justify criminality of those in power to hold maintain their power. Running a court across the street from Little Italy may not be grounds for associating Kaplan with organized crime, but his decision speaks to me for such a tie with the copyright industry and its Congressional supporters being foregone. Yes, hatred of prejudice in such corrupt judges, and contempt for their courts, is right and just. >From list Cyberia-L: >I hate Judge Kaplan. > >Eric Grimm From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 18 07:08:31 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id HAA18491 for dvd-discuss-outgoing; Fri, 18 Aug 2000 07:08:31 -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 HAA18488 for ; Fri, 18 Aug 2000 07:08:30 -0400 Received: from mediaone.net (h0060b03c5b8b.ne.mediaone.net [24.128.18.77]) by chmls06.mediaone.net (8.8.7/8.8.7) with ESMTP id HAA20563 for ; Fri, 18 Aug 2000 07:08:25 -0400 (EDT) Message-ID: <399D192A.77A74B1B@mediaone.net> Date: Fri, 18 Aug 2000 07:08:26 -0400 From: Sphere X-Mailer: Mozilla 4.73 [en] (WinNT; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Kaplan Decision for MPAA References: <20000811060959.14254.qmail@web123.yahoomail.com> <200008181019.GAA32621@blount.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: > ... > > >From list Cyberia-L: > > >I hate Judge Kaplan. > > > >Eric Grimm So... How long before the distributed DOS starts? I'd think that someone would come up with a Denial of Name attack designed not to be turned off. Given the descriptions I've heard of the last round of attacks, I figure it wouldn't be too hard for someone who knew the tricks to build a crack which was a virus which also found a list of sites by name and flooded them. A well designed crack might not even be noticed on the zombie. I don't know if the war is going to start over this ruling, but you can bet that at this rate it is going to start. -- Sphere. No permanence. No self. No perfection. From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 18 08:48:43 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id IAA19477 for dvd-discuss-outgoing; Fri, 18 Aug 2000 08:48:43 -0400 Received: from ghost.bibliotrack.com (root@adsl-151-202-34-10.bellatlantic.net [151.202.34.10]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id IAA19474 for ; Fri, 18 Aug 2000 08:48:42 -0400 Received: from banquo (banquo.bibliotrack.com [192.168.1.10]) by ghost.bibliotrack.com (8.9.3/8.9.3) with SMTP id IAA25313 for ; Fri, 18 Aug 2000 08:37:33 -0400 Message-Id: <4.1.20000818083039.0212c6f0@law.harvard.edu> X-Sender: wseltzer@law.harvard.edu (Unverified) X-Mailer: QUALCOMM Windows Eudora Pro Version 4.1 Date: Fri, 18 Aug 2000 08:50:20 -0400 To: dvd-discuss@eon.law.harvard.edu From: Wendy Seltzer Subject: [dvd-discuss] messy text version of opinion Mime-Version: 1.0 Content-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 posted a very messy version of a pdf to HTML conversion of the opinion at If anyone wants to take a shot at cleaning it up, that would be great. --Wendy --- Wendy Seltzer -- wendy@seltzer.com Fellow, Berkman Center for Internet & Society at Harvard Law School http://cyber.law.harvard.edu/seltzer.html From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 18 09:18:45 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA19940 for dvd-discuss-outgoing; Fri, 18 Aug 2000 09:18:45 -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 JAA19937 for ; Fri, 18 Aug 2000 09:18:45 -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 JAA01472 for ; Fri, 18 Aug 2000 09:18:42 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id JAA00975; Fri, 18 Aug 2000 09:18:41 -0400 (EDT) Date: Fri, 18 Aug 2000 09:18:41 -0400 (EDT) Message-Id: <200008181318.JAA00975@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Kaplan Decision for MPAA In-Reply-To: <399D192A.77A74B1B@mediaone.net> References: <20000811060959.14254.qmail@web123.yahoomail.com> <200008181019.GAA32621@blount.mail.mindspring.net> <399D192A.77A74B1B@mediaone.net> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu sphere1952@mediaone.net writes: > So... How long before the distributed DOS > starts? I'd think that someone would come > up with a Denial of Name attack designed > not to be turned off. Oh, criminy. Remember this from Kaplan's conclusions? Defendants, on the other hand, are adherents of a movement that believes that information should be available without charge to anyone clever enough to break into the computer systems or data storage media in which it is located. This isn't in the trial record at all. Nobody from the defense team or their witnesses said anything like it. And yet there it is in the judge's opinion. Why? Because that is how "the internet community" has been portrayed in media which this judge relies on, and how it is discussed by people he respects --- and not just Kaplan, but just about all of them. See, for instance, Edgar Bronfman's lines from his San Jose speech, from which Kaplan might have been quoting: But there are those who believe that because technology can access property and appropriate it, then somehow that which is yours is no longer yours -because technology has made it simple and easy for someone else to take it from you. We could all list a dozen things wrong with this view of "Internet culture". But yet, that is how net culture is *perceived* in some very influential circles --- as a gaggle of thieves. And those perceptions clearly worked against 2600 at the trial. That's what Kaplan is telling us in his conclusions. We can object. We should object. But we'd damn well better listen. With that in mind, could you please explain the goals of a large scale campaign of industrial sabotage at this point, what perceptions it will create in the minds of the appellate judges when they read about it on the editorial pages of the Wall Street Journal, and how you think it will contribute to a reversal of this ruling in a higher court? And --- remind me again --- doesn't the Buddhist faith that you claim to profess preach emotional *detachment* from worldly matters? Sheesh. rst PS --- for those with an interest, and the stomach for it, Bronfman's whole speech is at http://www.seagram.com/news/current-press/scl052600b.html My favorite passage: So am I warring against the culture of the Internet, threatening to depopulate Silicon Valley as I move a Roman legion or two of Wall Street lawyers to litigate in Bellevue and San Jose? I have moved those lawyers - or some of them - but I have done so, and will continue to do so - not to attack the Internet and its culture but for its benefit and to protect it. For its benefit. What would the Internet be without "content?" It would be a valueless collection of silent machines with gray screens. It would be the electronic equivalent of a marine desert - lovely elements, nice colors, no life. It would be nothing. Note the incredibly limited, and limiting, view of the Internet as solely a medium for the passive distribution of mass-produced "content" --- but note also that that's what he *wants* it to be. Anything else is more of a threat to traditional entertainment media. From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 18 10:01:49 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA20693 for dvd-discuss-outgoing; Fri, 18 Aug 2000 10:01:49 -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 KAA20690 for ; Fri, 18 Aug 2000 10:01:48 -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 KAA04655 for ; Fri, 18 Aug 2000 10:01:44 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id KAA12389; Fri, 18 Aug 2000 10:01:43 -0400 (EDT) Date: Fri, 18 Aug 2000 10:01:43 -0400 (EDT) Message-Id: <200008181401.KAA12389@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Kaplan Decision for MPAA In-Reply-To: <200008181318.JAA00975@soggy-fibers.ai.mit.edu> References: <20000811060959.14254.qmail@web123.yahoomail.com> <200008181019.GAA32621@blount.mail.mindspring.net> <399D192A.77A74B1B@mediaone.net> <200008181318.JAA00975@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: > And --- remind me again --- doesn't the Buddhist faith that you claim > to profess preach emotional *detachment* from worldly matters? > > Sheesh. Sorry, Sphere --- I got carried away here. Looks like I need to work on emotional attachment myself --- I don't think religious discussion is really belongs here, but certainly doesn't when phrased like this. Apologies. Too early. Must get coffee. Sigh... rst From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 18 10:11:53 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA20851 for dvd-discuss-outgoing; Fri, 18 Aug 2000 10:11:53 -0400 Received: from hotmail.com (f274.law9.hotmail.com [64.4.8.149]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id KAA20848 for ; Fri, 18 Aug 2000 10:11:52 -0400 Received: from mail pickup service by hotmail.com with Microsoft SMTPSVC; Fri, 18 Aug 2000 07:11:14 -0700 Received: from 128.244.34.133 by lw9fd.law9.hotmail.msn.com with HTTP; Fri, 18 Aug 2000 GMT X-Originating-IP: [128.244.34.133] From: "Harold Eaton" To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Harry's analysis of ruling Date: Fri, 18 Aug 2000 10:11:14 EDT Mime-Version: 1.0 Content-Type: text/plain; format=flowed Message-ID: X-OriginalArrivalTime: 18 Aug 2000 14:11:14.0665 (UTC) FILETIME=[2B4F2590:01C0091E] Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu This analysis mainly covers issues that I don't think were substantially raised by others. I agree with most of the points brought up recently by others here, but I don't bother to raise them again in this analysis. Pg 14 K>...digital files, unlike the material on video cassettes, can be copied K>without degradation from generation to generation. This statement is simply false, and is used later to support the “balance” of interests arguments. The materail on video cassettes can be digitized, and then copied without further degredation ad infinitum. Plainly put, the form of the source material makes no difference. Films are usually originally produced on film after all. Pg 16 K>Licenses to manufacture compliant devices are granted on a royalty- K>free basis... Kaplan states this royalty free basis many times as if that meant something. The reality is that one pays in blood by agreeing to be “compliant”. Furthermore, there is no reason to believe that this royalty-free situation will continue indefinitely, which is the time-frame that the MPAA has been granted exclusive rights to manufacture DVD players by this ruling. Pg 24 K>Having compared a store-bought DVD with PORTIONS of a copy... K>...the loss of quality...is imperceptible. Note 109 K> Defandants produced...[a] DivX... of noticeably lower quality... K> ...The reasons for the differences are not clear. The Court is K>satisfied that it is possible to make high quality 650 MB DivX’d K>copies of many films. The reasons are clear to me - when compressed to this level, the quality is variable and plantiffs chose to excerpt a portion of negligible degradation, while defendants chose to illustrate the truth: both good and poor quality portions. This illustrates bias against the defendants - the defence testimony explained why there would be both good and bad “portions” - but Kaplan disregards this because it is convenient to do so. Pg 26 K>Plaintiffs’...f[ound] someone...who exchanged a compressed, K>decrypted copy of The Matrix... K>...MPAA...downloaded between five and ten DVD-sourced K>movies over the internet... I’ll have to go back to the trial transcript, but I don’t believe any evidence was presented to support the “fact” that The Matrix was decrypted, and not sourced from a non-DVD media. Furthermore, if the “facts” can even nail-down how many movies the MPAA was able to dowload (was it 5,6,7,8,9, or 10???), how are we to believe that they are known to be DVD-sourced? Footnote 137 K> The DMCA proscribes trafficking in technology that decrypts... K>without the copyright holder consenting to the decryption... Kaplan has equated “authority of the copyright owner” here with “consent of the copyright owner”. A plausible argument I suppose, but it is in contradiction to the authority model he proposes later. In any event, this footnote makes clear that Kaplan’s ruling makes any compatible DVD player, even a compliant one, illegal to sell if it is not made under license - clearly giving perpetual patent-like rights to make and sell DVD players to the MPAA trust members. It also makes virtually all home viewing of DVDs done come October illegal since consent of the copyright owner is not usually obtained before viewing. Pg 32 K>One cannot lawfully gain access to the keys except by entering K>into a license with the DVD CCA... or by purchasing a DVD K>player...containing the keys persuant to such a license. Kaplan has decided the California case too! Reverse engineering is not a legal means to obtain the player keys - nor is a pure cryptographic attack, nor even guessing them! I frankly don’t see the legal support for this restrictive view. AFAIK, the player keys only legal protection is as a trade secret which certainly allows for many other means. Pg 33 K>As CSS, in the ordinary course of its operation...”actually works” K>to prevent access to the protected work... This is most strange. Here Kaplan states (without proof) that CSS prevents access. Mainly it prevents access in the case of region coding. But later the fact that CSS provides access is used as the basis to show that fair uses of DVD material are barely effected by 1201(a)(2). I think that here he means that the encryption step of CSS prevents access in the absence of a decryption step. However, this allows for all sorts of technology to “effectively control access”. E.g. without a laser, you are denied access because reflective dyes are used to store the information. Without a motor and spindle you are denied access because you need to sequence through the bits. If this is really all it takes to “effectively control access”, then the law must be either vague, or overbroad. Footnote 160 K> Of course, one might quote the verbal portion of the sound K>track, rerecord both verbal and nonverbal portions of the sound K>track, and video tape or otherwise record images produced K>on a monitor when the DVD is played on a compliant DVD K>player. Kaplan seems not to know that most DVDs are also macroVision protected, and cannot be legibly copied to video tape when played on a compliant DVD player. However since he suggests means to “otherwise record images,” he must be admiting that CSS permits copying which contradicts what he said on page copying. His only saving conditional is “exact copying”. But if “exact copying” is at issue, why then do we bother with all of the later discussion of DivX, which clearly is in no way “exact copying.” The simple fact is that plugging the video output from a compliant player into a frame-grabber board, capturing the movie and DivX encoding it will result in virtually identical results to that starting with using DeCSS to rip it. If good-quality final digital copy is the concern here, CSS does not effectively prevent it, except for Pg 43 K>The first element of ... balance was the ... limitation ...of the K>act of circumvention to the act itself so as not to “apply to K>subsequent actions... By doing so, it left “the traditional K>defenses to copyright infringement....fully applicable provided K>”the access is authorized” Under Judge Kaplan’s authority model (“consent of the copyright owner to decrypt”), no access that a copyright holder will conceivably consider infringement would be consented to. This turns 1201 (c) into a catch-22: you can use fair use to defend against an infringement claim, but only if the person suing you consented to what you did - if so, why are you being sued? Pg 60 K>Every recipient is capable not only of decrypting and perfectly K>copying plaintiffs’ copyrighted DVDs, but also of retransmitting K>perfect copies of DeCSS and thus enabling every recipient to K>do the same. He doesn’t bother to admit that there is some necessary hardware (a DVD ROM drive, computer, hard-disc etc.), but even assuming that everybody has the necessary hardware, it is little different from OCR software. Not only can you scan a book into a computer and transmitt it to others, you can transmit the OCR software to others too - potentially allowing for exponential copyright infringement of books. That’s been more-or-less the case since the ubiquitous appearance of copy and fax machines, but those technologies (a) didn’t create a copyright catastrophy for publishers and (b) didn’t merrit any need to erode first-amendment rights to fair use. Pg 71 K>To begin with, we do not have a complete view of whether the K>interests of the absent third parties upon whom defendants rely K>really are substantial and...whether the DMCA as applied here K>would materially affect their ability to make fair use... I guess the testimony of the image-classification researchers was of no value to judge Kaplan - he is unable to tell if their ability to make fair use is materially affected. Sigh. The pity here is that they are actually engaged in “the advancement of science and useful arts” Pg 72 K>Compliant DVD players permit one to view or listen to a DVD K>movie without circumventing CSS in any prohinited sense. Not if they’re coded for regions other than 1! It is absurd that Kaplan does not even mention region coding anywhere in his decision, especially since the defense included it in the small list of fair-use reasons to decrypt DVDs. My DVD player denies me ALL of the fair use examples that Kaplan sites for all discs not coded for region 1, not just excerpted copies. Here again it illustrates bias - region coding is contrary to Kaplan’s argument, so he simply ignores it’s existence. Footnote 244 K>CSS encryption ... also forecloses copying of digital sound files. K> It is not clear, however, that this is a substantial impediment to K>copying sound from motion picture DVDs. A DVD can be K>played on a compliant player and the sound re-recorded. Presently this is true, but watermarking technology is being made today that will be shoved down our throats tomorrow that will remove this possibility as well. In any event, a disc coded outside the player region will not allow re-recording when played on a compliant player, only when played on non-compliant players. Pg 75 K>There can be no serious doubt that posting a computer program K>the sole purpose of which is to defeat an encryption system K>controlling access to plaintiff’s copyrighted movies constituted K>an “offer to the public” of “technology [or a] product” that was K>”primarily designed for the purpose of circumventing” plaintiffs’ K>access control system. Excuse me? There can be no serious doubt? This list has a lot of really intelligent people, and we’ve been endlessly debating whether DeCSS circumvents, and whether CSS effectively controls access, and there have been strong points on each side! Frankly, I think Kaplan is very much on the weaker side of understanding the vague areas of this statute. Also there has been evidence presented that DeCSS was primarily designed for interoperability with Linux, although the Judge did not believe this testimony. DeCSS is only capable of decrypting the same DVDs the CSS decrypts. I think most everybody involved in its development and dissemination was operating under the belief that lawful purchase of the DVD was the grant of authority - before this ruling (and frankly, until it gets to the Supreme Court), it is sensible to believe this. Even Kaplan’s ruling leaves it quite vague as to whether viewing lawfully purchased DVDs on lawfully purchased DVD players is legal! I personally think he has introduced the necessary step of calling e.g. Warner Bros. and asking permission too. Pg 81 K>Dr. Shamos did pursue and obtain a pirated copy of a copyrighted, K>DivX’d motion picture from someone he met in an Internet chat room. I’m not sure that the movie so obtained was entered into evidence, and IANAL, so I don’t know if that makes it heresay or not. Regardless, this shows that Kaplan took Shamos’ testimony at face value even though a lot of it was evasive and appeared questionable to me. That he concluded Johansen lied, while Shamos spoke truthfully screams bias to me. Think about the motives for each person’s testimony and actions. Johansen is Norwegian and ruthlessly victimized by CSS region coding - that would provide very strong motivation to make a non-compliant DVD player; furthermore, storing an intermediate copy on hard disc is extremely inconvenient, so it is only natural to look for open mpeg decoder technology and other persons to assist in the further development of a full player- which leads straight to Linux. There is no reason not to believe this - yet Kaplan claims that he lied about it. Compare that to Shamos’ “I don’t recall” obvious lies and you can easily see where the Judges’ sympathy lies. Footnote 267 K>The available movies must have been decrypted with DeCSS K>or something else. I don’t think that there was any evidence proving that any of these movies even originated on DVD, rather than theater, video tape, or film. Without this proof, Kaplan’s statement is false. K>...this case comes within the principle of Summers v. Tice... During the discovery phase of this case, Kaplan ridiculed the defense’s sweeping discovery requests regarding world-wide piracy. Although he granted the request, he simultaneously denied sufficient time before the trial to processes it. For him to later invoke Summers v. Tice, placing the burden of proof on defendants, shows that he has not acted fairly towards defendants. This is IMHO extreme evidence of bias. Pg 89 K>They [MPAA] contend that the advent of new technology K>should not alter this long established structure [copyright law]. Wow! Read their comments to the Library of Congress. They want to elliminate first sale, fair use, resale, etc. etc. This is so far from not altering the long established structure as to be taken as a twisted Joke. ________________________________________________________________________ Get Your Private, Free E-mail from MSN Hotmail at http://www.hotmail.com From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 18 11:32:26 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA21562 for dvd-discuss-outgoing; Fri, 18 Aug 2000 11:32:26 -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 LAA21559 for ; Fri, 18 Aug 2000 11:32:24 -0400 Message-ID: <20000818153150.28997.qmail@web511.mail.yahoo.com> Received: from [131.44.121.4] by web511.mail.yahoo.com; Fri, 18 Aug 2000 08:31:50 PDT Date: Fri, 18 Aug 2000 08:31:50 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] the purpose of creating 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 --- Ingo Molnar wrote: > > "Moreover, the Court does not credit Mr. Johansen's testimony that he > created DeCSS solely for the purpose of building a Linux player." This seems like an abuse of discretion. Mr. Johansen's testimony was not disputed by anything else in evidence. It was backed by Pavlovich's testimony, who said that DeCSS code was incorporated into LiViD and was a critical step in making LiViD functional. Moreover he was willing to demonstrate LiViD, but Kaplan didn't want to see it. I don't think the MPAA even asked Kaplan to disbelieve the testimony. For the judge to simply ignore testimony with so much support is a bit hard to swallow. __________________________________________________ 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 Aug 18 11:36:42 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA21728 for dvd-discuss-outgoing; Fri, 18 Aug 2000 11:36:42 -0400 Received: from web509.mail.yahoo.com (web509.mail.yahoo.com [216.115.104.224]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id LAA21725 for ; Fri, 18 Aug 2000 11:36:40 -0400 Message-ID: <20000818153607.3658.qmail@web509.mail.yahoo.com> Received: from [131.44.121.4] by web509.mail.yahoo.com; Fri, 18 Aug 2000 08:36:07 PDT Date: Fri, 18 Aug 2000 08:36:07 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] the Fair Use doctrine To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-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 wrote: > > Kaplan argues that DMCA preempts Fair Use: > > "Congress struck a balance. The compromise it reached, depending upon > future technological and commercial developments, may or may not > prove ideal." > > but isnt the Fair Use doctrine something that evolved from the First > Amendment? Didnt the Supreme Court rule that Fair Use as provided by > the Copyright Act walks the fine line of constitutionality, and > that any subsequent restriction on it (such as the DMCA) would be > unconsitutional? > > Kaplan mentions this argument in his ruling, and argues that Congress > thought otherwise. But the Congress does not preempt the First > Amendment... Kaplan completely ignored the defense's argument that Fair Use is a Constitutional requirement. He simply did not respond to this. __________________________________________________ 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 Aug 18 11:43:51 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA22362 for dvd-discuss-outgoing; Fri, 18 Aug 2000 11:43:51 -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 LAA22359 for ; Fri, 18 Aug 2000 11:43:49 -0400 Received: from localhost (localhost [[UNIX: localhost]]) by rjmconsulting.com (8.9.3/8.9.3) id IAA23920 for dvd-discuss@eon.law.harvard.edu; Fri, 18 Aug 2000 08:54:56 -0700 From: Russell (James) Miller To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] the Fair Use doctrine Date: Fri, 18 Aug 2000 08:51:21 -0700 X-Mailer: KMail [version 1.0.29.2] Content-Type: text/plain References: <20000818153607.3658.qmail@web509.mail.yahoo.com> In-Reply-To: <20000818153607.3658.qmail@web509.mail.yahoo.com> MIME-Version: 1.0 Message-Id: <0008180854551P.04283@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'm getting the rather interesting feeling that kaplan did this on purpose - and not because he was bought off by the MPAA, although his bias is without question. I think that he just wanted to get this trial out of the way. He knew how significant it was, and really didn't want the limelight, so he urged for a good trial record, heard all he had to hear, and no more, made the ruling he was going to make anyway, and got out of the way so this matter could be decided higher up. I think that was simply his rather lawyerly way of saying "I just don't want to open this can of worms. Let someone else do it. It's in the trial record, I did that for you" Although basically writing the brief for the plaintiffs was way over the top. --james (Russell) On Fri, 18 Aug 2000, you wrote: > Kaplan completely ignored the defense's argument that Fair Use is a > Constitutional requirement. He simply did not respond to this. > > __________________________________________________ > Do You Yahoo!? > Send instant messages & get email alerts with Yahoo! Messenger. > http://im.yahoo.com/ -- Russell (James) 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 Aug 18 12:32:27 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA23176 for dvd-discuss-outgoing; Fri, 18 Aug 2000 12:32:27 -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 MAA23173 for ; Fri, 18 Aug 2000 12:32:26 -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 MAA21069 for ; Fri, 18 Aug 2000 12:32:23 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id MAA21447; Fri, 18 Aug 2000 12:32:23 -0400 (EDT) Date: Fri, 18 Aug 2000 12:32:23 -0400 (EDT) Message-Id: <200008181632.MAA21447@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Harry's analysis of ruling In-Reply-To: References: Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Harold Eaton writes: > Pg 14 > K>...digital files, unlike the material on video cassettes, can be copied > K>without degradation from generation to generation. > This statement is simply false, and is used later to support the “balance” > of interests arguments. The materail on video cassettes can be digitized, > and then copied without further degredation ad infinitum. Plainly put, > the form of the source material makes no difference. Films are usually > originally produced on film after all. Also, the digital copies at issue in the case (run through lossy codecs) are signficantly degraded from their digital source material. > Pg 16 > K>Licenses to manufacture compliant devices are granted on a royalty- > K>free basis... > Kaplan states this royalty free basis many times as if that meant something. > The reality is that one pays in blood by agreeing to be “compliant”. When making this point, I've found it helpful to spell out the blood price --- the conditions attached to compliance --- in more detail. They presently include region coding, and consent to the DVDCCA's IP regime (the fines it can levy if information is disclosed, and so forth). The point that new conditions may be imposed at the whim of the DVDCCA when one's license comes up for renewal is also important, of course. > Pg 24 > K>Having compared a store-bought DVD with PORTIONS of a copy... > K>...the loss of quality...is imperceptible. > Note 109 > K> Defandants produced...[a] DivX... of noticeably lower quality... > K> ...The reasons for the differences are not clear. The Court is > K>satisfied that it is possible to make high quality 650 MB DivX’d > K>copies of many films. > The reasons are clear to me - when compressed to this level, the > quality is variable and plantiffs chose to excerpt a portion of > negligible degradation, while defendants chose to illustrate the > truth: both good and poor quality portions. This illustrates bias > against the defendants - the defence testimony explained why > there would be both good and bad “portions” - but Kaplan > disregards this because it is convenient to do so. Absolutely --- but this looks to me like a finding of fact, which will be very difficult to reverse, unless the second circuit takes a much more sympathetic view towards Garbus' arguments for Kaplan's recusal than it has so far. > Pg 26 > K>Plaintiffs’...f[ound] someone...who exchanged a compressed, > K>decrypted copy of The Matrix... > K>...MPAA...downloaded between five and ten DVD-sourced > K>movies over the internet... > I’ll have to go back to the trial transcript, but I don’t believe any > evidence was presented to support the “fact” that The Matrix > was decrypted, and not sourced from a non-DVD media. > Furthermore, if the “facts” can even nail-down how many movies > the MPAA was able to dowload (was it 5,6,7,8,9, or 10???), > how are we to believe that they are known to be DVD-sourced? Yes, and some of the MPAA's anti-Internet propaganda has, IIRC, pointed out ads for movies that aren't even *available* on DVD yet (still in theaters), which clearly weren't DVD-sourced. So what? Kaplan could certainly argue, and perhaps in a sense did, that all that would mean is that the horse isn't out of the barn yet, and that there's still time for him to bar the door. > Footnote 137 > K> The DMCA proscribes trafficking in technology that decrypts... > K>without the copyright holder consenting to the decryption... > Kaplan has equated “authority of the copyright owner” here with > “consent of the copyright owner”. A plausible argument I suppose, > but it is in contradiction to the authority model he proposes later. > In any event, this footnote makes clear that Kaplan’s ruling > makes any compatible DVD player, even a compliant one, illegal > to sell if it is not made under license - clearly giving perpetual > patent-like rights to make and sell DVD players to the MPAA > trust members. It also makes virtually all home viewing of DVDs > done come October illegal since consent of the copyright owner > is not usually obtained before viewing. Well, the copyright owners have stated that they consent to the use of licensed players to use their material, which is enough for Kaplan. How that consent is communicated, and what happens if it is withdrawn, don't seem to concern him overmuch. > Pg 33 > K>As CSS, in the ordinary course of its operation...”actually works” > K>to prevent access to the protected work... > This is most strange. Here Kaplan states (without proof) that > CSS prevents access. Mainly it prevents access in the case of > region coding. But later the fact that CSS provides access is > used as the basis to show that fair uses of DVD material are > barely effected by 1201(a)(2). I think that here he means that > the encryption step of CSS prevents access in the absence of > a decryption step. However, this allows for > all sorts of technology to “effectively control access”. E.g. > without a laser, you are denied access because reflective dyes > are used to store the information. Without a motor and spindle > you are denied access because you need to sequence through > the bits. If this is really all it takes to “effectively control > access”, then the law must be either vague, or overbroad. Excellent point. I may be revising the authority paper again soon; mind if I use this? > Footnote 160 > K> Of course, one might quote the verbal portion of the sound > K>track, rerecord both verbal and nonverbal portions of the sound > K>track, and video tape or otherwise record images produced > K>on a monitor when the DVD is played on a compliant DVD > K>player. > Kaplan seems not to know that most DVDs are also macroVision > protected, and cannot be legibly copied to video tape when > played on a compliant DVD player. Quibble --- the DVD itself is not "macrovision protected"; rather, the players are bound under terms of the license to insert macrovision signals into their analog outputs to prevent copying, some of which is clearly fair use. > K>Every recipient is capable not only of decrypting and perfectly > K>copying plaintiffs’ copyrighted DVDs, but also of retransmitting > K>perfect copies of DeCSS and thus enabling every recipient to > K>do the same. > He doesn’t bother to admit that there is some necessary hardware > (a DVD ROM drive, computer, hard-disc etc.), but even assuming > that everybody has the necessary hardware, it is little different from > OCR software. Not only can you scan a book into a computer > and transmitt it to others, you can transmit the OCR software to > others too - potentially allowing for exponential copyright infringement > of books. That’s been more-or-less the case since the ubiquitous > appearance of copy and fax machines, but those technologies > (a) didn’t create a copyright catastrophy for publishers and > (b) didn’t merrit any need to erode first-amendment rights to > fair use. True. There is a very long history of chicken-little claims like this on the part of the copyright industries. At the turn of the century, free public libraries were going to put all the publishers out of business. However, this isn't an argument about the interpretation of the DMCA; instead, it's an argument that Congress needn't have passed the DMCA (or at least its anticircumvention provisions), or signed on to the WIPO treaties, in the first place. The tricky thing about this is that according to the legislative history, the people in Congress who shaped the bill clearly *believed* that there was a pressing need to restrain digital copying. So this is a bit different from cases in which the courts evaluated Congress's stated purpose in passing a bill and found it lacking; we'd be arguing here, instead, that there was no need for this bill (or any bill?) to meet Congress's stated purpose. > Pg 72 > K>Compliant DVD players permit one to view or listen to a DVD > K>movie without circumventing CSS in any prohinited sense. > > Not if they’re coded for regions other than 1! It is absurd that Kaplan > does not even mention region coding anywhere in his decision, > especially since the defense included it in the small list of fair-use > reasons to decrypt DVDs. My DVD player denies me ALL of > the fair use examples that Kaplan sites for all discs not coded > for region 1, not just excerpted copies. Here again it illustrates > bias - region coding is contrary to Kaplan’s argument, so he simply > ignores it’s existence. Does this mean it's not a fact on the evidentiary record? He's tried hard indeed to create a good trial record --- good, at least, for the MPAA. > Pg 75 > K>There can be no serious doubt that posting a computer program > K>the sole purpose of which is to defeat an encryption system > K>controlling access to plaintiff’s copyrighted movies constituted > K>an “offer to the public” of “technology [or a] product” that was > K>”primarily designed for the purpose of circumventing” plaintiffs’ > K>access control system. > Excuse me? There can be no serious doubt? This list has a lot of > really intelligent people, and we’ve been endlessly debating whether > DeCSS circumvents, and whether CSS effectively controls access, > and there have been strong points on each side! Yeah, but we're all a bunch of deadbeats who are just looking for hair-splitting excuses to shirk the law. I honestly think that's what he believes --- his conclusions practically said as much. rst From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 18 12:35:26 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA23309 for dvd-discuss-outgoing; Fri, 18 Aug 2000 12:35:26 -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 MAA23306 for ; Fri, 18 Aug 2000 12:35:25 -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 MAA21456 for ; Fri, 18 Aug 2000 12:35:23 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id MAA22269; Fri, 18 Aug 2000 12:35:21 -0400 (EDT) Date: Fri, 18 Aug 2000 12:35:21 -0400 (EDT) Message-Id: <200008181635.MAA22269@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] the Fair Use doctrine In-Reply-To: <20000818153607.3658.qmail@web509.mail.yahoo.com> References: <20000818153607.3658.qmail@web509.mail.yahoo.com> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Bryan Taylor writes: > Kaplan completely ignored the defense's argument that Fair Use is a > Constitutional requirement. He simply did not respond to this. No, he didn't ignore it; he said that it wasn't proper to consider it until a case came along in which impeded fair use of CSS-protected content was actually in evidence. From page 78, towards the end of several pages of discussion: Hence, the question whether Section 1201(a)(2) as applied here substantially affects rights, much less constitutionally protected rights, of members of the "fair use community" cannot be decided in bloc, without consideration of the circumstances of each member, or similarly situated groups of members. Thsu, the prudential concern with ensuring that constitutional questions be decided only when the facts before the Court so require counsels against permitting defendants to mount an overbreadth challenge here. rst From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 18 13:03:48 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA24188 for dvd-discuss-outgoing; Fri, 18 Aug 2000 13:03:48 -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 NAA24185 for ; Fri, 18 Aug 2000 13:03:45 -0400 Message-ID: <20000818170312.10282.qmail@web513.mail.yahoo.com> Received: from [131.44.121.4] by web513.mail.yahoo.com; Fri, 18 Aug 2000 10:03:12 PDT Date: Fri, 18 Aug 2000 10:03:12 -0700 (PDT) From: Bryan Taylor Subject: [dvd-discuss] LiViD To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Matt, It is clear that LiViD may be in danger because of this bad precedent. I suggest that if you value your project, you should have some discussions with the EFF regarding seeking a declatory judgement that LiViD qualifies for the RE exception. Since you are in TX, which is in the 5th circuit, you have the benefit of Vault v. Quaid as a precedent, which is a HUGE advantage, since it nixes the Xing shrinkwrap agreement, both as a contract and by preempting it's no-RE terms even if it is a contract. I think the process would go something like this: 1. Get the EFF to back you 2. Write a letter to the MPAA and DVD-CCA stating that A) The LiViD developers have lawfully reverse engineered CSS B) You intend to distribute your work under the GPL C) You will do so by posting it on a web server in Dallas TX under the jurisdiction of the 5th Circuit D) Ask them to stipulate or aquiece through silence that LiViD qualifies for the DMCA 1201(f) test E) State clearly that LiViD does not allow storage of the decrypted media on the hard drive F) State that your group has created LiViD solely for the purpose of interoperability of DVD's with "open source software" 3. They will respond with some form of cease and desist letter 4. File suit in the 5th Circuit for a declaratory judgement Maybe just skip steps 2-3. --- "Matthew R. Pavlovich" wrote: > I am quite disappointed in his opinion regarding the two CSS licensed > companies that plan to release a player for Linux. The real > number is 3, and none of them have released products. My > understanding is that part of the re clause in > the DMCA is that when there is not a commercial alternative > available, it is valid to reverse engineer for interoperability. > > In a sense, Kaplan is buying into the vaporware, and supporting the > DVD-CCA's hold on license control. __________________________________________________ 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 Aug 18 13:10:16 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA24363 for dvd-discuss-outgoing; Fri, 18 Aug 2000 13:10:16 -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 NAA24360 for ; Fri, 18 Aug 2000 13:10:14 -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 MAA20918 for ; Fri, 18 Aug 2000 12:09:41 -0500 Message-ID: <399D6BB2.F037C577@mninter.net> Date: Fri, 18 Aug 2000 12:00:34 -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] DMCA enters the terrible twos References: <20000817224552.E1080@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 > Does anybody else get depressed when reading decisions > like this? Or is only because I am half-listening to Gore's > acceptance speech at the same time, wondering if it is > really a good idea to try to live in this stupid society? Yes. Vote Nader. ;) -- moseng@mninter.net I use PGP 6.5.3 -- http://www.underwhelm.org/pgp From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 18 13:14:48 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA24496 for dvd-discuss-outgoing; Fri, 18 Aug 2000 13:14:48 -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 NAA24493 for ; Fri, 18 Aug 2000 13:14:47 -0400 Message-ID: <20000818171410.4878.qmail@web515.mail.yahoo.com> Received: from [131.44.121.4] by web515.mail.yahoo.com; Fri, 18 Aug 2000 10:14:10 PDT Date: Fri, 18 Aug 2000 10:14:10 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] the Fair Use doctrine To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-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: > Kaplan does not deny that there are potential First Amendment fair > use issues here, but he ruled the defendants can't bring them up, and > that others who are "members of the 'fair use community'" will have > to raise them. See p. 74 I laughed at this. Who exactly is the 'fair use communicty'? Why, it's the public, isn't it, who own the public domain. __________________________________________________ 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 Aug 18 13:26:54 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA24641 for dvd-discuss-outgoing; Fri, 18 Aug 2000 13:26:54 -0400 Received: from localhost.localdomain (mail4.registeredsite.com [209.35.159.16]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id NAA24638 for ; Fri, 18 Aug 2000 13:26:53 -0400 Received: from mail.nearside.com (mail.nearside.com [216.25.52.95]) by localhost.localdomain (8.9.3/8.9.3) with ESMTP id MAA04329 for ; Fri, 18 Aug 2000 12:22:41 -0400 Date: Fri, 18 Aug 2000 13:27:51 -0400 Message-Id: <200008181327.AA453509456@mail.nearside.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii From: "Jed Borod" X-Sender: To: Subject: Re: [dvd-discuss] LiViD X-Mailer: Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu ---------- Original Message ---------------------------------- From: Bryan Taylor Reply-To: dvd-discuss@eon.law.harvard.edu Date: Fri, 18 Aug 2000 10:03:12 -0700 (PDT) >Matt, > >It is clear that LiViD may be in danger because of this bad precedent. > >I suggest that if you value your project, you should have some >discussions with the EFF regarding seeking a declatory judgement that >LiViD qualifies for the RE exception. Since you are in TX, which is in >the 5th circuit, you have the benefit of Vault v. Quaid as a precedent, >which is a HUGE advantage, since it nixes the Xing shrinkwrap >agreement, both as a contract and by preempting it's no-RE terms even >if it is a contract. > >I think the process would go something like this: >1. Get the EFF to back you >2. Write a letter to the MPAA and DVD-CCA stating that > A) The LiViD developers have lawfully reverse engineered CSS > B) You intend to distribute your work under the GPL > C) You will do so by posting it on a web server in Dallas TX under > the jurisdiction of the 5th Circuit > D) Ask them to stipulate or aquiece through silence that LiViD > qualifies for the DMCA 1201(f) test > E) State clearly that LiViD does not allow storage of the > decrypted media on the hard drive > F) State that your group has created LiViD solely for the purpose > of interoperability of DVD's with "open source software" >3. They will respond with some form of cease and desist letter >4. File suit in the 5th Circuit for a declaratory judgement This would be great, if the MPAA would agree - something I strongly doubt. Right now they're extremely confident, because of the NY ruling, and would probably refuse, citing Kaplan's "dismissal" of any form of the Linux argument. From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 18 13:32:22 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA24775 for dvd-discuss-outgoing; Fri, 18 Aug 2000 13:32:22 -0400 Received: from hotmail.com (f54.law9.hotmail.com [64.4.9.54]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id NAA24772 for ; Fri, 18 Aug 2000 13:32:20 -0400 Received: from mail pickup service by hotmail.com with Microsoft SMTPSVC; Fri, 18 Aug 2000 10:31:44 -0700 Received: from 128.244.34.133 by lw9fd.law9.hotmail.msn.com with HTTP; Fri, 18 Aug 2000 GMT X-Originating-IP: [128.244.34.133] From: "Harold Eaton" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Harry's analysis of ruling Date: Fri, 18 Aug 2000 13:31:43 EDT Mime-Version: 1.0 Content-Type: text/plain; format=flowed Message-ID: X-OriginalArrivalTime: 18 Aug 2000 17:31:44.0141 (UTC) FILETIME=[2D6F83D0:01C0093A] Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Robert S. Thau wrote: >Yes, and some of the MPAA's anti-Internet propaganda has, IIRC, >pointed out ads for movies that aren't even *available* on DVD yet >(still in theaters), which clearly weren't DVD-sourced. So what? > >Kaplan could certainly argue, and perhaps in a sense did, that all >that would mean is that the horse isn't out of the barn yet, and that >there's still time for him to bar the door. I don't think so. He was arguing that the MPAA *has* suffered actual damages, and making conjectures to support that position. >Well, the copyright owners have stated that they consent to the use of >licensed players to use their material, which is enough for Kaplan. >How that consent is communicated, and what happens if it is withdrawn, >don't seem to concern him overmuch. I'm not really sure that any of the studios have given any legally binding consent to me personally. I plan to write to them asking them to put it in writing now that it may be criminal. Speaking of which, I live in Maryland, so does Kaplan's ruling directly apply to me? i.e do I live within that circuit? > > > Pg 33 > > K>As CSS, in the ordinary course of its operation...”actually works” > > K>to prevent access to the protected work... > > > This is most strange. Here Kaplan states (without proof) that > > CSS prevents access. Mainly it prevents access in the case of > > region coding. But later the fact that CSS provides access is > > used as the basis to show that fair uses of DVD material are > > barely effected by 1201(a)(2). I think that here he means that > > the encryption step of CSS prevents access in the absence of > > a decryption step. However, this allows for > > all sorts of technology to “effectively control access”. E.g. > > without a laser, you are denied access because reflective dyes > > are used to store the information. Without a motor and spindle > > you are denied access because you need to sequence through > > the bits. If this is really all it takes to “effectively control > > access”, then the law must be either vague, or overbroad. > >Excellent point. I may be revising the authority paper again soon; >mind if I use this? Hey, this is open law - anyone is free to use it. I especially like it being put to good use :-) > > Footnote 160 > > K> Of course, one might quote the verbal portion of the sound > > K>track, rerecord both verbal and nonverbal portions of the sound > > K>track, and video tape or otherwise record images produced > > K>on a monitor when the DVD is played on a compliant DVD > > K>player. > > > Kaplan seems not to know that most DVDs are also macroVision > > protected, and cannot be legibly copied to video tape when > > played on a compliant DVD player. > >Quibble --- the DVD itself is not "macrovision protected"; rather, the >players are bound under terms of the license to insert macrovision >signals into their analog outputs to prevent copying, some of which is >clearly fair use. Counter-quibble: the DVD disk must set a bit requesting the macrovision dither. In order to set this bit, the publisher has to pay royalties. They can choose not to use it and save some pennies. In fact the royalty costs are quite low and, even so, the studios sometimes opt not to use it. The price of macrovision protection is actually quite a nice proxy for what the studios believe the TRUE cost of piracy is! > > > K>Every recipient is capable not only of decrypting and perfectly > > K>copying plaintiffs’ copyrighted DVDs, but also of retransmitting > > K>perfect copies of DeCSS and thus enabling every recipient to > > K>do the same. > > > He doesn’t bother to admit that there is some necessary hardware > > (a DVD ROM drive, computer, hard-disc etc.), but even assuming > > that everybody has the necessary hardware, it is little different from > > OCR software. Not only can you scan a book into a computer > > and transmitt it to others, you can transmit the OCR software to > > others too - potentially allowing for exponential copyright >infringement > > of books. That’s been more-or-less the case since the ubiquitous > > appearance of copy and fax machines, but those technologies > > (a) didn’t create a copyright catastrophy for publishers and > > (b) didn’t merrit any need to erode first-amendment rights to > > fair use. > >True. There is a very long history of chicken-little claims like this >on the part of the copyright industries. At the turn of the century, >free public libraries were going to put all the publishers out of >business. > >However, this isn't an argument about the interpretation of the DMCA; >instead, it's an argument that Congress needn't have passed the DMCA >(or at least its anticircumvention provisions), or signed on to the >WIPO treaties, in the first place. > >The tricky thing about this is that according to the legislative >history, the people in Congress who shaped the bill clearly *believed* >that there was a pressing need to restrain digital copying. So this >is a bit different from cases in which the courts evaluated Congress's >stated purpose in passing a bill and found it lacking; we'd be arguing >here, instead, that there was no need for this bill (or any bill?) to >meet Congress's stated purpose. Yes, but to the extent that congress must "balance" copyright interests with those of the first amendment, IMHO they must do so with the least damage to the first amendment. Presently it's like the sad situation with the drug war: property may be confiscated without due process, and without compensation even though the constitution forbids this. The hysteria about drugs is the (false) basis for "balancing" these things. > > Pg 72 > > K>Compliant DVD players permit one to view or listen to a DVD > > K>movie without circumventing CSS in any prohinited sense. > > > > Not if they’re coded for regions other than 1! It is absurd that >Kaplan > > does not even mention region coding anywhere in his decision, > > especially since the defense included it in the small list of fair-use > > reasons to decrypt DVDs. My DVD player denies me ALL of > > the fair use examples that Kaplan sites for all discs not coded > > for region 1, not just excerpted copies. Here again it illustrates > > bias - region coding is contrary to Kaplan’s argument, so he simply > > ignores it’s existence. > >Does this mean it's not a fact on the evidentiary record? He's tried >hard indeed to create a good trial record --- good, at least, for the >MPAA. I would hope that it's in evidence - if the secret CSS specification is in evidence, then it must be, if that CSS specification is not in evidence, then Kaplan is talking about a lot of stuff that is not in evidence. e.g. "a compliant player alows viewing but not copying" >Yeah, but we're all a bunch of deadbeats who are just looking for >hair-splitting excuses to shirk the law. I honestly think that's what >he believes --- his conclusions practically said as much. True, true. Especially those who filled amicus briefs, as deadbeat as they come. Speaking of which, is there any prospect of getting Sen. Ashcroft to weigh in with a brief for the appeal? I can't imagine he's happy with this ruling. ________________________________________________________________________ Get Your Private, Free E-mail from MSN Hotmail at http://www.hotmail.com From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 18 13:52:52 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA24996 for dvd-discuss-outgoing; Fri, 18 Aug 2000 13:52:52 -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 NAA24993 for ; Fri, 18 Aug 2000 13:52:51 -0400 Message-ID: <20000818175216.25713.qmail@web512.mail.yahoo.com> Received: from [131.44.121.4] by web512.mail.yahoo.com; Fri, 18 Aug 2000 10:52:16 PDT Date: Fri, 18 Aug 2000 10:52:16 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] Kaplan Decision for MPAA To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-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: > Kaplan's overt prejudice from day one surely diminished > respect for federal justice. I had not seen such behavior > before in New York. I expect that the appeal will cover claims of prejudice and partiality when it covers recusal. If Kaplan's denial of recusal is overturned, every decision, motion, and order given by Kaplan will likely be vacated and a new district judge appointed for a new trial. I suggest that we write an amicus brief petition style stating rather succinctly that we believe that Kaplan had a conflict of interest which warrented recusal. I think such a public call for recusal would be unprecedented. The law governing recusal applies if a reasonable person could believe that conflict of interest is present. I bet if we posted it on Slashdot and canvased LUG's, we could easily get 1000 reasonable people to state that "a reasonable person might harbor doubts about the trial judge's impartiality." [quoted from case cited below]. Kaplan's arguement that "DVD matters" is too broad of a catagory to warrent recusal doesn't square with precedent. In fact, there are only 3 DVD cases total in the Country, so it's pretty narrow. In Panama v. American Tobacco, "tobacco matters" was close enough to disqualify a judge because an association he was an officer in submitted an amicus brief in an unrelated case, though he took no part in writing it. See: http://eon.law.harvard.edu/archive/dvd-discuss/msg05750.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 Aug 18 13:57:01 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA25150 for dvd-discuss-outgoing; Fri, 18 Aug 2000 13:57:01 -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 NAA25147 for ; Fri, 18 Aug 2000 13:57:01 -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 NAA01581 for ; Fri, 18 Aug 2000 13:56:58 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id NAA13986; Fri, 18 Aug 2000 13:56:58 -0400 (EDT) Date: Fri, 18 Aug 2000 13:56:58 -0400 (EDT) Message-Id: <200008181756.NAA13986@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Harry's analysis of ruling In-Reply-To: References: Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Harold Eaton writes: > True, true. Especially those who filled amicus briefs, as deadbeat as > they come. Speaking of which, is there any prospect of getting Sen. > Ashcroft to weigh in with a brief for the appeal? I can't imagine he's > happy with this ruling. Regrettably, I can, if all that he's heard about it is regurgitated versions of MPAA press releases, which describe CSS as a copy-control (not access control) technology, and misleadingly state that CSS is freely available for all legitimate uses (without spelling out any of the MPAA's qualifications on what is legitimate). If he understands that Kaplan has just overturned Universal v. Sony within the Southern District of New York, he would be a useful and powerful ally. But we can't take that understanding for granted. BTW, on related matters, there's an interesting essay on the history of copyright and copying battles in the September Atlantic: http://www.theatlantic.com/issues/2000/09/mann.htm Note in particular the parallels drawn between digital copying now and piano rolls (a digital technology, sure 'nuff) last century. This article concentrates mostly on Napster and the music industry (there's a brief mention of the DivX codec towards the end, but not DeCSS or Universal v. Corley), but is still good for historical perspective. rst From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 18 14:07:54 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA25237 for dvd-discuss-outgoing; Fri, 18 Aug 2000 14:07:54 -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 OAA25231 for ; Fri, 18 Aug 2000 14:07:34 -0400 Message-ID: <20000818180659.21180.qmail@web513.mail.yahoo.com> Received: from [131.44.121.4] by web513.mail.yahoo.com; Fri, 18 Aug 2000 11:06:59 PDT Date: Fri, 18 Aug 2000 11:06:59 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] the Fair Use doctrine To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-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, I suppose you could say that he explained why he didn't respond, but he made no attempt to even disagree. He seems to be inviting members of the "fair use community" to file suit. (I guess declarations and amicus briefs aren't good enough). Perhaps the EFF should take him up on that offer. --- "Robert S. Thau" wrote: > Bryan Taylor writes: > > > Kaplan completely ignored the defense's argument that Fair Use > > is a Constitutional requirement. He simply did not respond > > to this. > > No, he didn't ignore it; he said that it wasn't proper to consider it > until a case came along in which impeded fair use of CSS-protected > content was actually in evidence. From page 78, towards the end of > several pages of discussion: > > Hence, the question whether Section 1201(a)(2) as applied here > substantially affects rights, much less constitutionally protected > rights, of members of the "fair use community" cannot be decided > in bloc, without consideration of the circumstances of each member, > or similarly situated groups of members. Thsu, the prudential > concern with ensuring that constitutional questions be decided > only when the facts before the Court so require counsels > against permitting defendants to mount an overbreadth > challenge here. __________________________________________________ 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 Aug 18 14:18:29 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA25630 for dvd-discuss-outgoing; Fri, 18 Aug 2000 14:18:29 -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 OAA25627 for ; Fri, 18 Aug 2000 14:18:25 -0400 Received: (from paul@localhost) by dial140.roadrunner.com (8.8.7/8.8.7) id MAA01508 for dvd-discuss@eon.law.harvard.edu; Fri, 18 Aug 2000 12:19:41 -0600 Date: Fri, 18 Aug 2000 12:19:40 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Statutory blunders, was: the Fair Use doctrine Message-ID: <20000818121939.A1291@localhost> References: <20000818153607.3658.qmail@web509.mail.yahoo.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <20000818153607.3658.qmail@web509.mail.yahoo.com>; from bryan_w_taylor@yahoo.com on Fri, Aug 18, 2000 at 08:36:07AM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, Aug 18, 2000 at 08:36:07AM -0700, Bryan Taylor wrote: > > --- Ingo Molnar wrote: > > > > Kaplan argues that DMCA preempts Fair Use: > > > > "Congress struck a balance. The compromise it reached, depending upon > > future technological and commercial developments, may or may not > > prove ideal." > > > > but isnt the Fair Use doctrine something that evolved from the First > > Amendment? Didnt the Supreme Court rule that Fair Use as provided by > > the Copyright Act walks the fine line of constitutionality, and > > that any subsequent restriction on it (such as the DMCA) would be > > unconsitutional? > > > > Kaplan mentions this argument in his ruling, and argues that Congress > > thought otherwise. But the Congress does not preempt the First > > Amendment... > > Kaplan completely ignored the defense's argument that Fair Use is a > Constitutional requirement. He simply did not respond to this. The best way to examine the balance that Congress struck is to examine the statute that they wrote. The only place section s.1201 mentions fair use is in 1201(c)(1). Just as with s.1203, *Congress already did the balancing*. Kaplan has now read the statute to ignore that *statutory* balancing and made up his own test to suit his own tastes. How many are we up to? Let's keep score of the statutory blunders the court commits in this opinion: 1. Ignored s.1203(b); applied a de novo judge-made argument about the regulability of speech that applies to virii and other malware. S.1201 makes no claim to regulate malware. Do you get the point? No? That's not surprising after reading that aerogel --- a void contaminated with a trace of substance. Put in a way that I hope even a federal district judge can follow: a. Since when has legislation forbidding malware relied on copyright as a constitutional basis? b. Give an explanation of how violations of s.106 exclusive rights could be used provide a legal choke-point through which those committing an act of computer sabotage or intrusion would have to pass. c. Give an explanation of how progress in the useful arts and science would be promoted by making the right to run a program on one's own hardware an exclusive right to one's writings under copyright legislation. 2. Ignored s.1201(c)(1); made up a judicial balance between access control and fair use that is at odds with the statutory balance. 3. Implied that s.109(c) is not part of Title 17. 4. The very first paragraph of the opinion says CSS is copy control. Then why is this a 1201(a) suit instead of 1201(b)? After all, copying is an exclusive right, and 1201(b) covers technological measures which limit the exercise of an exclusive right. The very first paragraph of this opinion is premised on violating a basic principle of statutory construction? There are two sections, with different tests and different exemptions. So which one do you want to litigate? Pick one, and analyze it. Flopping back and forth between sections of the statute in the middle of an analysis is invalid. Silly me. I've been reading the statutes! Thanks for the pointer Lewis. You were so kind to not insult any of the people working on this case when you charmingly referred to the difference between pre- and post- first sale authorization to gain access to a/the work as "sophistry". Now I get it. All along I've just been imposing my scientific world-view on the legal world-view. I've been unfairly foisting the social construct of worshiping to the documentary record, intruding into your personal beliefs with the dogma that facts are in the world (or alternatively are external to the human mind), and guilt-tripping you with my personal emotions about the so-called "correctness" of logic. All to the unbecoming end of humiliating you into following my personal, politically correct socially-constructed scientific world-view. Yup, I was Pavlovian conditioned in graduate school to believe in external reality. I picked up a religious conviction that denigrates the value of coming to terms with one's personal and unique contribution to finding one of the multiform valid readings of federal statute. And it is the height of arrogance to suggest that logic might apply to aspects of the human experience outside science. That is really a judgment best made by consensus of the people who have experienced particular life paths and found interpretive harmony. So sorry. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 18 14:19:43 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA25699 for dvd-discuss-outgoing; Fri, 18 Aug 2000 14:19:43 -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 OAA25696 for ; Fri, 18 Aug 2000 14:19:43 -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 NAA08555 for ; Fri, 18 Aug 2000 13:19:40 -0500 (CDT) Message-ID: <399D7E82.6FB1FF51@uic.edu> Date: Fri, 18 Aug 2000 13:20:50 -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] Harry's analysis of ruling Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Footnote 160 K> Of course, one might quote the verbal portion of the sound K> track, rerecord both verbal and nonverbal portions of the sound K> track, and video tape or otherwise record images produced K> on a monitor when the DVD is played on a compliant DVD K> player. H> Kaplan seems not to know that most DVDs are also macroVision H> protected, and cannot be legibly copied to video tape when H> played on a compliant DVD player. Not to mention that the DMCA also makes it illegal to sell a VCR that can copy a macrovision encoded signal. So no, you *can't* video tape the images from a DVD, except on older equipment that is no longer legal to market. Kaplan is selectively ignoring parts of the very law he is ruling on. From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 18 14:32:30 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA25898 for dvd-discuss-outgoing; Fri, 18 Aug 2000 14:32:30 -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 OAA25895 for ; Fri, 18 Aug 2000 14:32:29 -0400 Received: from soggy-fibers.ai.mit.edu (soggy-fibers [128.52.32.48]) by life.ai.mit.edu (8.9.3/8.9.3/AI2.13/ai.master.life:2.21) with ESMTP id OAA06198 for ; Fri, 18 Aug 2000 14:32:27 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id OAA23402; Fri, 18 Aug 2000 14:32:26 -0400 (EDT) Date: Fri, 18 Aug 2000 14:32:26 -0400 (EDT) Message-Id: <200008181832.OAA23402@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] the Fair Use doctrine In-Reply-To: <20000818180659.21180.qmail@web513.mail.yahoo.com> References: <20000818180659.21180.qmail@web513.mail.yahoo.com> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Bryan Taylor writes: > Well, I suppose you could say that he explained why he didn't respond, > but he made no attempt to even disagree. He seems to be inviting > members of the "fair use community" to file suit. (I guess declarations > and amicus briefs aren't good enough). Perhaps the EFF should take him > up on that offer. Well, actually, he's inviting the "fair use community" to *construct a proper test case*, in which the fair use doctrine applies immediately and directly to the facts in evidence --- a library wanting to do a media transfer, for example. Then, he says, the judge or judges reviewing that case will be able to see how the issues play out in the real world, as opposed to considering hypothetical situations with no knowledge of how often they would arise in practice, or whether they would really arise at all (de minimis non curat lex). And while Kaplan's done a lot of unreasonable things in this case, I'm actually not sure that this is one of them. It was certainly forseeable that he *might* take such a tack going in; see for instance http://eon.law.harvard.edu/archive/dvd-discuss/msg06056.html But I presume that the defense team took that into account when they framed their arguments. rst From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 18 14:34:18 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA26036 for dvd-discuss-outgoing; Fri, 18 Aug 2000 14:34:18 -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 OAA26033 for ; Fri, 18 Aug 2000 14:34:17 -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 NAA10680 for ; Fri, 18 Aug 2000 13:34:15 -0500 (CDT) Message-ID: <399D81EE.7E13F32A@uic.edu> Date: Fri, 18 Aug 2000 13:35:27 -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: [dvd-discuss] Kaplan on the chain of 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 Kaplan takes a stab at decyphering the chain of authority: K> One cannot gain access to a CSS-protected work on a DVD K> without application of the three keys that are required by the K> software. ... which is the "technical" implementation ... K> One cannot lawfully gain access to the [CSS] keys except by K> entering into a license with the DVD CCA under authority K> granted by the copyright owners or by purchasing a DVD K> player or drive containing the keys pursuant to such a K> license. ... so according to Kaplan, authority is conveyed ... Copyright owner --> DVD CCA --> Drive Manufacturer --> Consumer ... and according to Kaplan, the consumer "lawfully gain[s] access to the [CSS] keys" at the moment of purchase of a DVD player or drive. Well, there was considerable argument over exactly when and how the user receives authorization to decode a DVD. Most people here thought authorization came, or should come, when you purchased the disc. The MPAA argued that authorization is granted separately each time you insert the disk in the drive and press play. Kaplan says neither: lawful access to the keys comes when you purchase the player hardware. Given that using DeCSS requires a computer DVD drive to operate, and given that most if not all computer DVD drives are sold with player software bundled, it appears that by Kaplan's own tortured logic, most if not all potential users of DeCSS have already "lawfully gained access to the [CSS] keys" when they purchased the drive needed to operate DeCSS, because according to Kaplan, that's where the end user receives authority. From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 18 14:41:40 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA26167 for dvd-discuss-outgoing; Fri, 18 Aug 2000 14:41:40 -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 OAA26164 for ; Fri, 18 Aug 2000 14:41:39 -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 NAA11764 for ; Fri, 18 Aug 2000 13:41:36 -0500 (CDT) Message-ID: <399D83A7.DC3AF65A@uic.edu> Date: Fri, 18 Aug 2000 13:42:47 -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] Statutory blunders, was: the Fair Use doctrine Content-Type: text/plain; charset=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 rants about the low quality of the > judicial opinion.) Who was it who said, in effect, "The law is like sausage -- those who revere it should not watch it being made." We hope you have enjoyed your tour of the "quality control" division of the sausage factory. Free samples will be available at the conclusion of the tour. From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 18 14:52:50 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA26290 for dvd-discuss-outgoing; Fri, 18 Aug 2000 14:52:50 -0400 Received: from dial190.roadrunner.com (sf-du190.cybermesa.com [209.12.75.190]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id OAA26287 for ; Fri, 18 Aug 2000 14:52:46 -0400 Received: (from paul@localhost) by dial190.roadrunner.com (8.8.7/8.8.7) id MAA01644 for dvd-discuss@eon.law.harvard.edu; Fri, 18 Aug 2000 12:53:59 -0600 Date: Fri, 18 Aug 2000 12:53:58 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Harry's analysis of ruling Message-ID: <20000818125358.B1291@localhost> References: <200008181632.MAA21447@soggy-fibers.ai.mit.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: <200008181632.MAA21447@soggy-fibers.ai.mit.edu>; from rst@ai.mit.edu on Fri, Aug 18, 2000 at 12:32:23PM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, Aug 18, 2000 at 12:32:23PM -0400, Robert S. Thau wrote: > Harold Eaton writes: [ ... ] > > Footnote 160 > > K> Of course, one might quote the verbal portion of the sound > > K>track, rerecord both verbal and nonverbal portions of the sound > > K>track, and video tape or otherwise record images produced > > K>on a monitor when the DVD is played on a compliant DVD > > K>player. > > > Kaplan seems not to know that most DVDs are also macroVision > > protected, and cannot be legibly copied to video tape when > > played on a compliant DVD player. > > Quibble --- the DVD itself is not "macrovision protected"; rather, the > players are bound under terms of the license to insert macrovision > signals into their analog outputs to prevent copying, some of which is > clearly fair use. Factually this may be a quibble, but it is important to Kaplan's total failure to reach any understanding of the facts. He confuses the statutory protection of technological access control measures applied to the work with contractual limitations that require a bundle of technologically-unrelated measures limiting player design as a condition for the player to implement the measure permitting access to the work. Page 1, paragraph 1 reflects these gross misunderstandings of the different technological measures and the difference between statute and contract. > > K>Every recipient is capable not only of decrypting and perfectly > > K>copying plaintiffs’ copyrighted DVDs, but also of retransmitting > > K>perfect copies of DeCSS and thus enabling every recipient to > > K>do the same. > > > He doesn’t bother to admit that there is some necessary hardware > > (a DVD ROM drive, computer, hard-disc etc.), but even assuming > > that everybody has the necessary hardware, it is little different from > > OCR software. Not only can you scan a book into a computer > > and transmitt it to others, you can transmit the OCR software to > > others too - potentially allowing for exponential copyright infringement > > of books. That’s been more-or-less the case since the ubiquitous > > appearance of copy and fax machines, but those technologies > > (a) didn’t create a copyright catastrophy for publishers and > > (b) didn’t merrit any need to erode first-amendment rights to > > fair use. > > True. There is a very long history of chicken-little claims like this > on the part of the copyright industries. At the turn of the century, > free public libraries were going to put all the publishers out of > business. > > However, this isn't an argument about the interpretation of the DMCA; > instead, it's an argument that Congress needn't have passed the DMCA > (or at least its anticircumvention provisions), or signed on to the > WIPO treaties, in the first place. Isn't this an argument that 1201(b) is unnecessary? I don't believe this an argument about 1201(a). > The tricky thing about this is that according to the legislative > history, the people in Congress who shaped the bill clearly *believed* > that there was a pressing need to restrain digital copying. So this > is a bit different from cases in which the courts evaluated Congress's > stated purpose in passing a bill and found it lacking; we'd be arguing > here, instead, that there was no need for this bill (or any bill?) to > meet Congress's stated purpose. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 18 14:53:28 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA26299 for dvd-discuss-outgoing; Fri, 18 Aug 2000 14:53:28 -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 OAA26296 for ; Fri, 18 Aug 2000 14:53:22 -0400 Received: (from phil@localhost) by ramtop.demon.co.uk (8.9.3/8.9.3) id TAA14019 for dvd-discuss@eon.law.harvard.edu; Fri, 18 Aug 2000 19:46:26 +0100 Date: Fri, 18 Aug 2000 19:46:26 +0100 From: Phil Harrison To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Kaplan Enjoins 2600 from Posting and Linking Message-ID: <20000818194626.A13785@ramtop.demon.co.uk> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <4.2.2.20000817135158.00e6ef00@seltzer.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii Content-Disposition: inline User-Agent: Mutt/1.2.5i In-Reply-To: <4.2.2.20000817135158.00e6ef00@seltzer.com>; from wendy@seltzer.com on Thu, Aug 17, 2000 at 03:00:55PM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, Aug 17, 2000 at 03:00:55PM -0400, Wendy Seltzer wrote: > Not unexpectedly, Judge Kaplan has ruled against 2600. > > Impressions from an initial skim of the decision: > Kaplan gives short shrift to the expressive content of computer code, > finding the anticircumvention provisions of 1201 to be a valid > content-neutral restriction on speech. He invokes an odd "disease" > metaphor for the propagation of decryption tools, to find 1201 necessary to > the important governmental interest of protecting copyright. > > Kaplan further enjoins linking to DeCSS by pulling hyperlinking within the > 1201 prohibition on "offering" circumvention technologies. He appears > relatively unconcerned with the restrictions on speech a hyperlinking ban > entails. > How does this affect URL's that use search engines? For example, if you use Disne's search engine: http://www.go.com and search for decss.zip, you get several links to sites offering the DeCSS code for download. You also get an URL which contains the search terms (I am not posting it here because I don't know the legal implications of it appearing on the mailing list archive). Is 2600.com enjoined from using that URL in a link, seeing as the actual list of sites is produced by a server under the control of one of the plaintiffs? -- Phil Harrison From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 18 15:01:51 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA26480 for dvd-discuss-outgoing; Fri, 18 Aug 2000 15:01:51 -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 PAA26477 for ; Fri, 18 Aug 2000 15:01:50 -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 PAA09772 for ; Fri, 18 Aug 2000 15:01:47 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id PAA01247; Fri, 18 Aug 2000 15:01:46 -0400 (EDT) Date: Fri, 18 Aug 2000 15:01:46 -0400 (EDT) Message-Id: <200008181901.PAA01247@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Harry's analysis of ruling In-Reply-To: <20000818125358.B1291@localhost> References: <200008181632.MAA21447@soggy-fibers.ai.mit.edu> <20000818125358.B1291@localhost> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Paul Fenimore writes: > > True. There is a very long history of chicken-little claims like this > > on the part of the copyright industries. At the turn of the century, > > free public libraries were going to put all the publishers out of > > business. > > > > However, this isn't an argument about the interpretation of the DMCA; > > instead, it's an argument that Congress needn't have passed the DMCA > > (or at least its anticircumvention provisions), or signed on to the > > WIPO treaties, in the first place. > > Isn't this an argument that 1201(b) is unnecessary? I don't believe this > an argument about 1201(a). Well, yes, but the MPAA has done an excellent job of confusing the two, and Kaplan at least has clearly bought into it. rst From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 18 15:06:51 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA26797 for dvd-discuss-outgoing; Fri, 18 Aug 2000 15:06:51 -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 PAA26794 for ; Fri, 18 Aug 2000 15:06:44 -0400 Received: (from paul@localhost) by dial193.roadrunner.com (8.8.7/8.8.7) id NAA01934 for dvd-discuss@eon.law.harvard.edu; Fri, 18 Aug 2000 13:08:03 -0600 Date: Fri, 18 Aug 2000 13:08:02 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Kaplan on the chain of authority Message-ID: <20000818130802.C1291@localhost> References: <399D81EE.7E13F32A@uic.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <399D81EE.7E13F32A@uic.edu>; from jms@uic.edu on Fri, Aug 18, 2000 at 01:35:27PM -0500 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, Aug 18, 2000 at 01:35:27PM -0500, John Schulien wrote: > Kaplan takes a stab at decyphering the chain of authority: > > K> One cannot gain access to a CSS-protected work on a DVD > K> without application of the three keys that are required by the > K> software. > > ... which is the "technical" implementation ... > > K> One cannot lawfully gain access to the [CSS] keys except by > K> entering into a license with the DVD CCA under authority > K> granted by the copyright owners or by purchasing a DVD > K> player or drive containing the keys pursuant to such a > K> license. > > ... so according to Kaplan, authority is conveyed ... > > Copyright owner --> > DVD CCA --> > Drive Manufacturer --> > Consumer > > ... and according to Kaplan, the consumer "lawfully gain[s] > access to the [CSS] keys" at the moment of purchase of a > DVD player or drive. > > Well, there was considerable argument over exactly when > and how the user receives authorization to decode a DVD. > > Most people here thought authorization came, or should > come, when you purchased the disc. The MPAA argued > that authorization is granted separately each time you > insert the disk in the drive and press play. Kaplan says > neither: lawful access to the keys comes when you > purchase the player hardware. > > Given that using DeCSS requires a computer DVD drive to > operate, and given that most if not all computer DVD drives > are sold with player software bundled, it appears that by > Kaplan's own tortured logic, most if not all potential users > of DeCSS have already "lawfully gained access to the > [CSS] keys" when they purchased the drive needed to > operate DeCSS, because according to Kaplan, that's > where the end user receives authority. There is no player key in a DVD drive. The player key lives in the player software. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 18 15:08:23 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA26887 for dvd-discuss-outgoing; Fri, 18 Aug 2000 15:08:23 -0400 Received: from mail.lemuria.org (lemuria.borgfelde.ricardo.de [195.244.103.65]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA26883 for ; Fri, 18 Aug 2000 15:08:21 -0400 Received: by mail.lemuria.org (Postfix, from userid 500) id E408F27AB4; Fri, 18 Aug 2000 21:06:35 +0200 (MEST) Date: Fri, 18 Aug 2000 21:06:35 +0200 From: Tom Vogt To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] introduction Message-ID: <20000818210635.A28207@lemuria.org> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0pre3i X-Privacy: If you can, please encrypt your mails - finger for key Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu want to post a short hello. my name's above. I'm one of the 23 named defendants in the california case, and I'm also the only one of them who still has his site online (I just recently added DeCSS Plus to it). I joined this list by invitation from eric eldred. I contacted him about his /. posting. in short, my idea (based on his posting) is to create a DVD that - according to kaplan's ruling - can not be legally accessed even though it contains only perfectly legal content and even though the creator/copyright holder gives his explicit consent. From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 18 15:17:26 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA27142 for dvd-discuss-outgoing; Fri, 18 Aug 2000 15:17:26 -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 PAA27134 for ; Fri, 18 Aug 2000 15:17:24 -0400 Received: (from paul@localhost) by dial193.roadrunner.com (8.8.7/8.8.7) id NAA01942 for dvd-discuss@eon.law.harvard.edu; Fri, 18 Aug 2000 13:18:37 -0600 Date: Fri, 18 Aug 2000 13:18:37 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Harry's analysis of ruling Message-ID: <20000818131836.D1291@localhost> References: <200008181632.MAA21447@soggy-fibers.ai.mit.edu> <20000818125358.B1291@localhost> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <20000818125358.B1291@localhost>; from fenimore@roadrunner.com on Fri, Aug 18, 2000 at 12:53:58PM -0600 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Try again: 1. Statute protects technological measure that control access to a work. 2. DVD-CCA contracts require technological measures, applied to the player device, that limit the exercise of an exclusive right. 3. A contract does change two technological measures into one technological measure. 4. A contract does not convert limitation on player design into a measure that applies to a work. 5. A contract does not convert an access control measure into a measure that limits the exercise of an exclusive right (i.e. lawyer-speak for copy control). 6. The contract requiring that licensed players be gacked is not protected by federal statute. Only technological measure are protected by 1201(a) and 1201(b). On Fri, Aug 18, 2000 at 12:53:58PM -0600, Paul Fenimore wrote: > Factually this may be a quibble, but it is important to Kaplan's total > failure to reach any understanding of the facts. He confuses the statutory > protection of technological access control measures applied to the work > with contractual limitations that require a bundle of > technologically-unrelated > measures limiting player design as a condition for the player to > implement the measure permitting access to the work. > > Page 1, paragraph 1 reflects these gross misunderstandings of the > different technological measures and the difference between statute and > contract. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 18 15:22:22 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA27409 for dvd-discuss-outgoing; Fri, 18 Aug 2000 15:22:22 -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 PAA27405 for ; Fri, 18 Aug 2000 15:22:19 -0400 Received: (from paul@localhost) by dial193.roadrunner.com (8.8.7/8.8.7) id NAA01972 for dvd-discuss@eon.law.harvard.edu; Fri, 18 Aug 2000 13:23:43 -0600 Date: Fri, 18 Aug 2000 13:23:42 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Kaplan on the chain of authority Message-ID: <20000818132342.A1960@localhost> References: <399D81EE.7E13F32A@uic.edu> <20000818130802.C1291@localhost> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <20000818130802.C1291@localhost>; from fenimore@roadrunner.com on Fri, Aug 18, 2000 at 01:08:02PM -0600 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Ick. Need more sleep. On Fri, Aug 18, 2000 at 01:08:02PM -0600, Paul Fenimore wrote: > There is no player key in a DVD drive. The player key lives in the ^^^^^^^^^ > player software. I was trying to distinguish between DVD player devices and the drive mechanism that one finds in a computer. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 18 15:35:20 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA27630 for dvd-discuss-outgoing; Fri, 18 Aug 2000 15:35:20 -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 PAA27627 for ; Fri, 18 Aug 2000 15:35:20 -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 PAA13239 for ; Fri, 18 Aug 2000 15:35:18 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id PAA10100; Fri, 18 Aug 2000 15:35:17 -0400 (EDT) Date: Fri, 18 Aug 2000 15:35:17 -0400 (EDT) Message-Id: <200008181935.PAA10100@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] introduction In-Reply-To: <20000818210635.A28207@lemuria.org> References: <20000818210635.A28207@lemuria.org> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Tom Vogt writes: > I joined this list by invitation from eric eldred. I contacted him > about his /. posting. in short, my idea (based on his posting) is to > create a DVD that - according to kaplan's ruling - can not be legally > accessed even though it contains only perfectly legal content and even > though the creator/copyright holder gives his explicit consent. The CSS technology is technology that we have constructed in order to protect our own works. Mr. Vogt does not desire such protection. That is his privilege, and we have no quarrel. He need merely produce a DVD with no CSS scrambling --- an entirely legal procedure for which commercial tools are readily available from a variety of sources. (insert results of "DVD mastering" web search here). Such unprotected DVDs may be used in exactly the same way as our CSS-protected DVDs. Any legitimate, licensed, DVD player will play them, including those which incorporate CSS technology. So, anyone who wishes to produce such an unprotected disk has the tools available, and neither CSS technology nor the DMCA poses any hindrance whatever. In short, Mr. Vogt has all the lawful tools needed to produce a disk that will function exactly as he desires, readily at his disposal. How can he claim then that his rights to pursue any lawful purpose are being violated by the DMCA, or by CSS technology? What he has done, instead, is analogous to putting a lock on his own door, throwing away the key, and then complaining that "locksmithing technology" is denying him the right to access his own property. The claim is obviously frivolous, and does not merit a moment's attention from the court. Seriously, this argument has struck me as awfully weak. If you demonstrate that *the movie studios* are gaining effective indefinite copyright by putting works that have passed into the public domain onto copy-protected media, that's something different; you have demonstrated real harm. But if you produce the disk yourself, you can't make that claim --- you obviously had full, unimpeded access to all the source material, or you couldn't have (lawfully) created the darn thing in the first place. rst From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 18 15:36:30 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA27666 for dvd-discuss-outgoing; Fri, 18 Aug 2000 15:36:30 -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 PAA27663 for ; Fri, 18 Aug 2000 15:36:27 -0400 Message-ID: <20000818193554.13907.qmail@web512.mail.yahoo.com> Received: from [131.44.121.4] by web512.mail.yahoo.com; Fri, 18 Aug 2000 12:35:54 PDT Date: Fri, 18 Aug 2000 12:35:54 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] introduction To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --- Tom Vogt wrote: > want to post a short hello. Welcome. > my name's above. I'm one of the 23 named defendants in the california > case, and I'm also the only one of them who still has his site online > (I just recently added DeCSS Plus to it). What jurisdiction are you in, out of curiosity? What is DeCSS Plus? > I joined this list by invitation from eric eldred. I contacted him > about his /. posting. in short, my idea (based on his posting) is to > create a DVD that - according to kaplan's ruling - can not be legally > accessed even though it contains only perfectly legal content and > even though the creator/copyright holder gives his explicit consent. How do you propose to do this? __________________________________________________ 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 Aug 18 15:37:36 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA27751 for dvd-discuss-outgoing; Fri, 18 Aug 2000 15:37:36 -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 PAA27748 for ; Fri, 18 Aug 2000 15:37:33 -0400 Received: (from phil@localhost) by ramtop.demon.co.uk (8.9.3/8.9.3) id UAA14212 for dvd-discuss@eon.law.harvard.edu; Fri, 18 Aug 2000 20:37:03 +0100 Date: Fri, 18 Aug 2000 20:37:03 +0100 From: Phil Harrison To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] More thoughts on authority Message-ID: <20000818203702.B13785@ramtop.demon.co.uk> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii Content-Disposition: inline User-Agent: Mutt/1.2.5i Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Apologies if this is regarded as wandering off topic a little, but it might be a possible weakness in the Kaplan's interpretation of authority. As I (not being a lawyer) read section 1201, it only restricts reverse egineering for the purposes of decrypting. Is there anything that restricts people from reverse engineering CSS encryption without the authority of the DVDCCA for the purposes of allowing copyright holders to protect their own copyright works? For example, if 2600 magazine (or anyone else for that matter) managed to produce a CSS encrypted DVD without involving the DVDCCA, they could grant authority to decrypt to whoever they want since they are clearly the copyright holder. If they were selling these DVD's from their website and authorised the use of DeCSS to access the work, would this constitute a significant purpose or use of DeCSS other than to circumvent? I know there are the technical issues of actually getting the DVD's produced, but is there any legal problem with this approach? -- Phil Harrison From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 18 15:39:56 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA27813 for dvd-discuss-outgoing; Fri, 18 Aug 2000 15:39:56 -0400 Received: from hotmail.com (f136.law9.hotmail.com [64.4.9.136]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA27810 for ; Fri, 18 Aug 2000 15:39:55 -0400 Received: from mail pickup service by hotmail.com with Microsoft SMTPSVC; Fri, 18 Aug 2000 12:39:22 -0700 Received: from 128.244.34.134 by lw9fd.law9.hotmail.msn.com with HTTP; Fri, 18 Aug 2000 GMT X-Originating-IP: [128.244.34.134] From: "Harold Eaton" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] introduction Date: Fri, 18 Aug 2000 15:39:22 EDT Mime-Version: 1.0 Content-Type: text/plain; format=flowed Message-ID: X-OriginalArrivalTime: 18 Aug 2000 19:39:22.0353 (UTC) FILETIME=[0215EE10:01C0094C] Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Tom Vogt wrote: >my name's above. I'm one of the 23 named defendants in the california >case, and I'm also the only one of them who still has his site online >(I just recently added DeCSS Plus to it). > > >I joined this list by invitation from eric eldred. I contacted him >about his /. posting. in short, my idea (based on his posting) is to >create a DVD that - according to kaplan's ruling - can not be legally >accessed even though it contains only perfectly legal content and even >though the creator/copyright holder gives his explicit consent. Um, I'm not sure I understand the purpose of this. I think it would be better to make a DVD to which you as copyright owner don't authorize to be used with anything *other* than DeCSS, so that CSS becomes the circumventor. Regardless, can you please expand upon what it is you want to do exactly? ________________________________________________________________________ Get Your Private, Free E-mail from MSN Hotmail at http://www.hotmail.com From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 18 15:54:04 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA27903 for dvd-discuss-outgoing; Fri, 18 Aug 2000 15:54:04 -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 PAA27900 for ; Fri, 18 Aug 2000 15:54:02 -0400 Received: from sites.inka.de (puric.inka.de [212.227.14.17]) by mail.inka.de with esmtp id 13PsDG-0004yM-00; Fri, 18 Aug 2000 21:53:58 +0200 Received: from localhost by sites.inka.de with local id 13PsDG-0002fk-00; Fri, 18 Aug 2000 21:53:58 +0200 Date: Fri, 18 Aug 2000 21:53:58 +0200 From: Sham Gardner To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] LiViD Message-ID: <20000818215358.A9727@inka.de> References: <20000818170312.10282.qmail@web513.mail.yahoo.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0i In-Reply-To: <20000818170312.10282.qmail@web513.mail.yahoo.com>; from bryan_w_taylor@yahoo.com on Fri, Aug 18, 2000 at 10:03:12AM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, Aug 18, 2000 at 10:03:12AM -0700, Bryan Taylor wrote: > C) You will do so by posting it on a web server in Dallas TX under > the jurisdiction of the 5th Circuit As far as I can tell LiViD's site (linuxvideo.org) is hosted in Germany. Are you saying it would be beneficial to move it to somewhere within the 5th Circuit? Sham -- http://sites.inka.de/risctaker/DeCSS/ "The first speech censored, the first thought forbidden, the first freedom denied, chains us all irrevocably." (Jean-Luc Picard) From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 18 15:56:39 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA28014 for dvd-discuss-outgoing; Fri, 18 Aug 2000 15:56:39 -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 PAA28011 for ; Fri, 18 Aug 2000 15:56:38 -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 OAA22872 for ; Fri, 18 Aug 2000 14:56:36 -0500 (CDT) Message-ID: <399D953C.4857170@uic.edu> Date: Fri, 18 Aug 2000 14:57:48 -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] Kaplan on the chain of 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 > On Fri, Aug 18, 2000 at 01:08:02PM -0600, Paul Fenimore wrote: >> There is no player key in a DVD drive. The player key lives in the ^^^^^^^^^ >> player software. > I was trying to distinguish between DVD player devices and the drive > mechanism that one finds in a computer. This is more to the point of whether USING DeCSS will be in violation of 1201(a)(1) come October. My point was that the drives are sold bundled with software, so that box you pick up at the computer store, pay for at the register, and take home contains a player key. Therefore, DeCSS cannot "circumvent a technological measure" in the 1201(a)(3)(A) sense, because DeCSS can only function in conjunction with a DVD drive, and the purchase of a drive, according to Kaplan, is what conveys authority to decode DVDs. Or am I way off base ... From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 18 16:05:13 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA28126 for dvd-discuss-outgoing; Fri, 18 Aug 2000 16:05:13 -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 QAA28123 for ; Fri, 18 Aug 2000 16:05:12 -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 QAA16281 for ; Fri, 18 Aug 2000 16:05:10 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id QAA18095; Fri, 18 Aug 2000 16:05:09 -0400 (EDT) Date: Fri, 18 Aug 2000 16:05:09 -0400 (EDT) Message-Id: <200008182005.QAA18095@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Kaplan on the chain of authority In-Reply-To: <399D953C.4857170@uic.edu> References: <399D953C.4857170@uic.edu> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu John Schulien writes: > Therefore, DeCSS cannot "circumvent a technological measure" > in the 1201(a)(3)(A) sense, because DeCSS can only function > in conjunction with a DVD drive, and the purchase of a drive, > according to Kaplan, is what conveys authority to decode DVDs. > > Or am I way off base ... It looks to me that, on Kaplan's view, it's purchase of *whatever contains the player key* --- which would be the software player, and not the DVD drive, if the two aren't bundled together. Which has the *very* odd consequence that "DOD ripper", which captures the output of a licensed player, is perfectly legal, and DeCSS isn't --- never mind that the sole purpose of "DOD ripper" is to facilitate illegitimate copying, and DeCSS has other purposes which look perfectly legitimate to us, such as allowing you to build your a DVD player which won't be hobbled be region codes. But we've been through that before. rst From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 18 16:09:05 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA28256 for dvd-discuss-outgoing; Fri, 18 Aug 2000 16:09:05 -0400 Received: from bigbrother.net (root@w131.z208177180.chi-il.dsl.cnc.net [208.177.180.131]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id QAA28253 for ; Fri, 18 Aug 2000 16:09:03 -0400 Received: from localhost (sterno@localhost) by bigbrother.net (8.10.1/8.9.3) with ESMTP id e7IK92p20111 for ; Fri, 18 Aug 2000 15:09:02 -0500 Date: Fri, 18 Aug 2000 15:09:02 -0500 (CDT) From: Steve Stearns To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] LiViD In-Reply-To: <20000818215358.A9727@inka.de> Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, 18 Aug 2000, Sham Gardner wrote: > On Fri, Aug 18, 2000 at 10:03:12AM -0700, Bryan Taylor wrote: > > C) You will do so by posting it on a web server in Dallas TX under > > the jurisdiction of the 5th Circuit > As far as I can tell LiViD's site (linuxvideo.org) is hosted in Germany. > Are you saying it would be beneficial to move it to somewhere within the > 5th Circuit? Well, for the overall issue it may be more of a benefit if LiViD were in the 5th Circuit. Right now, a distribution site in Germany can't be touched by U.S. copyright law, but if somebody within the U.S. were to link to it or mirror it, it might become an issue. If LiViD were moved to the 5th Circuit, then there could be a ruling that declared it officially legal which would offer some protection to redistribution within the U.S. Question though: if I'm in a different circuit, would a ruling in the 5th circuit help me if I was redistributing LiViD? ---Steve From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 18 16:21:00 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA28345 for dvd-discuss-outgoing; Fri, 18 Aug 2000 16:21:00 -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 QAA28342 for ; Fri, 18 Aug 2000 16:20:59 -0400 Received: from ip147.bedford.ma.pub-ip.psi.net ([38.32.9.147]) by relay21.smtp.psi.net with smtp (Exim 3.13 #3) id 13PsdM-0000bw-00 for dvd-discuss@eon.law.harvard.edu; Fri, 18 Aug 2000 16:20:56 -0400 From: Ron Gustavson To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Kaplan on the chain of authority Date: Fri, 18 Aug 2000 16:14:33 -0400 Message-ID: References: <399D953C.4857170@uic.edu> In-Reply-To: <399D953C.4857170@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 QAA28343 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, 18 Aug 2000 14:57:48 -0500, John Schulien wrote: >My point was that the drives are sold bundled with software, >so that box you pick up at the computer store, pay for at the register, >and take home contains a player key. Most are bundled with players, but you can also buy a bare drive. __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 18 16:34:17 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA28726 for dvd-discuss-outgoing; Fri, 18 Aug 2000 16:34:17 -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 QAA28723 for ; Fri, 18 Aug 2000 16:34:01 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id QAA02267 for dvd-discuss@eon.law.harvard.edu; Fri, 18 Aug 2000 16:41:33 -0400 Date: Fri, 18 Aug 2000 16:41:28 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Statutory blunders, was: the Fair Use doctrine Message-ID: <20000818164128.B1777@eldritchpress.org> References: <20000818153607.3658.qmail@web509.mail.yahoo.com> <20000818121939.A1291@localhost> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <20000818121939.A1291@localhost>; from fenimore@roadrunner.com on Fri, Aug 18, 2000 at 12:19:40PM -0600 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, Aug 18, 2000 at 12:19:40PM -0600, Paul Fenimore wrote: >.... > one, and analyze it. Flopping back and forth between sections of the > statute in the middle of an analysis is invalid. > > Silly me. I've been reading the statutes! Thanks for the pointer Lewis. > You were so kind to not insult any of the people working on this case > when you charmingly referred to the difference between pre- and post- > first sale authorization to gain access to a/the work as "sophistry". > > Now I get it. > > All along I've just been imposing my scientific world-view on the legal > world-view. I've been unfairly foisting the social construct of worshiping > to the documentary record, intruding into your personal beliefs with the > dogma that facts are in the world (or alternatively are external to the > human mind), and guilt-tripping you with my personal emotions about the > so-called "correctness" of logic. All to the unbecoming end of humiliating > you into following my personal, politically correct socially-constructed > scientific world-view. > > Yup, I was Pavlovian conditioned in graduate school to believe in external > reality. I picked up a religious conviction that denigrates the value > of coming to terms with one's personal and unique contribution to > finding one of the multiform valid readings of federal statute. And it > is the height of arrogance to suggest that logic might apply to aspects > of the human experience outside science. That is really a judgment best > made by consensus of the people who have experienced particular life > paths and found interpretive harmony. Since this is an open forum for all of us (not just lawyers) to discuss the law and help make it work, I believe you are on the right track and should not be blindsided by this decision. You should know that your attitude is commendable. Please read "The Death of Common Sense: How Law is Suffocating America," by Philip K. Howard, Warner Books, 1996, ISBN 0446672289. It seems pretty plain that the MPAA is writing the specifications for the law to preserve their economic interests, and then buying the politicians and others to pass the laws with the "right" specifications that will be interpreted in the "right" way by judges and enforced in the "right" way by prosecutors and police. In the days of James Fisher & Co the publishers hired goon squads to break up and burn down their competitors. Nowadays they hire a flying squad of expensive lawyers and do it more smoothly. We have been trying to make the law work by attaching some sort of reasonable interpretation on it that serves the interests of the public and allows technology to function well. I wonder now if we are deluding ourselves--is the law now an "epiphenonomenon," some "superstructure" that has no real relation to real life and its problems? I hope not, and I won't give up trying just yet, but when one is humiliated in the attempt to apply reason to the law, it doesn't encourage us much further. From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 18 16:36:57 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA29043 for dvd-discuss-outgoing; Fri, 18 Aug 2000 16:36:57 -0400 Received: from mail.lemuria.org (lemuria.borgfelde.ricardo.de [195.244.103.65]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id QAA29038 for ; Fri, 18 Aug 2000 16:36:55 -0400 Received: from lemuria.org by mail.lemuria.org via rsmtp with bsmtp id for ; Fri, 18 Aug 2000 22:26:33 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Received: by lemuria.org via sendmail with stdio id for dvd-discuss@eon.law.harvard.edu; Fri, 18 Aug 2000 22:23:26 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Date: Fri, 18 Aug 2000 22:23:26 +0200 From: Tom Vogt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] introduction Message-ID: <20000818222326.H10630@lemuria.org> References: <20000818193554.13907.qmail@web512.mail.yahoo.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0pre3i In-Reply-To: <20000818193554.13907.qmail@web512.mail.yahoo.com> X-Privacy: If you can, please encrypt your mails - finger for key Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Bryan Taylor wrote: > > my name's above. I'm one of the 23 named defendants in the california > > case, and I'm also the only one of them who still has his site online > > (I just recently added DeCSS Plus to it). > What jurisdiction are you in, out of curiosity? way outside california - I'm a german citizen, I've never been to california in my life, and my webserver is also here in germany. > What is DeCSS Plus? a decss implementation without the controversial xing player key. > > create a DVD that - according to kaplan's ruling - can not be legally > > accessed even though it contains only perfectly legal content and > > even though the creator/copyright holder gives his explicit consent. > > How do you propose to do this? that is why I joined the list. I know nothing about the US legal system (aside from what I picked up over the past months). I do know a little about the technical aspects. -- "The net treats censorship as a malfunction and re-routes around it." (John Gilmore) From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 18 16:36:55 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA29034 for dvd-discuss-outgoing; Fri, 18 Aug 2000 16:36:55 -0400 Received: from mail.lemuria.org (lemuria.borgfelde.ricardo.de [195.244.103.65]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id QAA29029 for ; Fri, 18 Aug 2000 16:36:53 -0400 Received: from lemuria.org by mail.lemuria.org via rsmtp with bsmtp id for ; Fri, 18 Aug 2000 22:26:33 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Received: by lemuria.org via sendmail with stdio id for dvd-discuss@eon.law.harvard.edu; Fri, 18 Aug 2000 22:21:07 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Date: Fri, 18 Aug 2000 22:21:07 +0200 From: Tom Vogt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] introduction Message-ID: <20000818222107.G10630@lemuria.org> References: <20000818210635.A28207@lemuria.org> <200008181935.PAA10100@soggy-fibers.ai.mit.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0pre3i In-Reply-To: <200008181935.PAA10100@soggy-fibers.ai.mit.edu> X-Privacy: If you can, please encrypt your mails - finger for key Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu "Robert S. Thau" wrote: > Seriously, this argument has struck me as awfully weak. If you > demonstrate that *the movie studios* are gaining effective indefinite > copyright by putting works that have passed into the public domain > onto copy-protected media, that's something different; you have > demonstrated real harm. But if you produce the disk yourself, you > can't make that claim --- you obviously had full, unimpeded access to > all the source material, or you couldn't have (lawfully) created the > darn thing in the first place. thanks for the input. you are right, this will not prove anything. -- "The net treats censorship as a malfunction and re-routes around it." (John Gilmore) From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 18 16:42:27 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA29512 for dvd-discuss-outgoing; Fri, 18 Aug 2000 16:42:27 -0400 Received: from tneu.visi.com (tneu.visi.com [209.98.6.48]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id QAA29509 for ; Fri, 18 Aug 2000 16:42:25 -0400 Received: from tneu.visi.com (tneu.visi.com [163.228.19.198]) by tneu.visi.com (Postfix) with ESMTP id C34D43DD for ; Fri, 18 Aug 2000 12:08:55 -0500 (CDT) Date: Fri, 18 Aug 2000 12:08:55 -0500 (CDT) From: tim To: dvd-discuss@eon.law.harvard.edu 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 In some respects, the bias is good. The more darconian his interpretation of the DMCA is, the more unconstitutional the DMCA becomes. > Kaplan's overt prejudice from day one surely diminished > respect for federal justice. I had not seen such behavior > before in New York. And when the prejudice was flaunted > increasingly during trial it occurred to me that he was > diabolically aiming to show just how biased the DMCA > is toward the copyright industry. A kind of reverse or > rather perverse judgmentalism to send a message to > Congress and its lobbyists that they could not get away > with racketeer influenced organized crime, not on his > watch. Even if his intentions were fixed from the beginning, the more biased his judgement, the better chance we have of having his decision reversed (or at least retried, hopefully with a different judge). Now, Garbus did appeal the recusal motion - and the appeal was denied (as I understand it). Does this mean we're stuck with Kaplan for good? Can someone tell us non-lawyerly geeks what happens next? If the court of appeals sees something wrong with Kaplan's ruling or the trial itself, they just send the case back to Kaplan, don't they? I wish I paid more attention in Social Studies Class! :-) > But perhaps, I now think, I was being too understanding > of Kaplan, too forgiving of his one-sided behavior. For it > is possible, I tell myself, that Kaplan was showing a modern > face of old time corrupt justice, that the fix was in from day > one. That would also account for his implacable opposition > to the defense, the lackadaisical presentations of the > plaintiffs, his repeated rulings in favor of the plaintiffs, the > personal attacks on Garbus by Kaplan during trial, Kaplan's > rudeness toward Robin Gross and Allonn Levy at the PI > hearing, and the contempt he displays in his decision > for the defendants and disparagement of supporters. IMHO, the judge may or may not be biased, but that shouldn't matter. He never should have been trying this case to begin with. (Not having worked for the prosecution, designing the very anti-trust scheme that the prosecution is protecting with their lawsuit!) Reading his ruling, however, does give one the feeling that he is either very seriously missinformed, or had his mind made up to begin with. > Yes, hatred of prejudice in such corrupt judges, and contempt > for their courts, is right and just. I think it would be more productive to hate the injustice, rather than those who practice it. Any hatred towards Kaplan is only going to be viewed by the world as rebellion against the law - and we don't need that perception following us around any more than it already has. This case does shake my confidence in the legal system, but right now we are only dealing with one small part of the process. We still have a circuit court and the supreme court to go through, and my faith in the legal system will hopefully be much greater after watching how the appellate courts handle this injustice. All is not lost, unless the MPAA wins all of its appeals; in which case I'm emigrating to Canada! Even if all were lost with DeCSS, there would still be the possiblity of a class-action lawsuit against the MPAA... =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- ______ _ __ "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 / <_/ / / < / (_; Fri, 18 Aug 2000 16:43:51 -0400 Received: (from eds@localhost) by thud.reric.net (8.9.3/8.8.7) id PAA19121 for dvd-discuss@eon.law.harvard.edu; Fri, 18 Aug 2000 15:43:47 -0500 Date: Fri, 18 Aug 2000 15:43:47 -0500 From: Eric Seppanen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] LiViD Message-ID: <20000818154347.A19078@thud.reric.net> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <20000818170312.10282.qmail@web513.mail.yahoo.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1us In-Reply-To: <20000818170312.10282.qmail@web513.mail.yahoo.com>; from bryan_w_taylor@yahoo.com on Fri, Aug 18, 2000 at 10:03:12AM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, Aug 18, 2000 at 10:03:12AM -0700, Bryan Taylor wrote: > Matt, > > It is clear that LiViD may be in danger because of this bad precedent. > > I suggest (... snip) > 1. Get the EFF to back you > 2. Write a letter to the MPAA and DVD-CCA stating that > A) The LiViD developers have lawfully reverse engineered CSS > B) You intend to distribute your work under the GPL > C) You will do so by posting it on a web server in Dallas TX under > the jurisdiction of the 5th Circuit > D) Ask them to stipulate or aquiece through silence that LiViD > qualifies for the DMCA 1201(f) test > E) State clearly that LiViD does not allow storage of the > decrypted media on the hard drive But using css-cat _does_ allow storing of the decrypted data, anywhere the user wants. Are you recommending that this functionality be removed? Maybe it should only dump 30 seconds at a time? But how are you going to prevent people from fiddling the source code to re-enable the features that scare the MPAA? Perhaps the source code should be hidden! And you better change the license so nobody reverse-engineers the dangerous parts! (ditto region codes, ditto player keys... :) In short, there is no feature set that it going to be agreed upon between free-software developers and MPAA/DVDCCA, so I think pretending that developers are going to kindly cripple their software and their methods to please the MPAA is a mistake. So 2.E should be stricken from the list. I don't necessarily endorse the rest of the list but that's the only item I really don't think flies. > F) State that your group has created LiViD solely for the purpose > of interoperability of DVD's with "open source software" > 3. They will respond with some form of cease and desist letter > 4. File suit in the 5th Circuit for a declaratory judgement > > Maybe just skip steps 2-3. > > --- "Matthew R. Pavlovich" wrote: > > I am quite disappointed in his opinion regarding the two CSS licensed > > companies that plan to release a player for Linux. The real > > number is 3, and none of them have released products. My > > understanding is that part of the re clause in > > the DMCA is that when there is not a commercial alternative > > available, it is valid to reverse engineer for interoperability. > > > > In a sense, Kaplan is buying into the vaporware, and supporting the > > DVD-CCA's hold on license control. > From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 18 16:46:53 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA29635 for dvd-discuss-outgoing; Fri, 18 Aug 2000 16:46:53 -0400 Received: from mail.lemuria.org (lemuria.borgfelde.ricardo.de [195.244.103.65]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id QAA29632 for ; Fri, 18 Aug 2000 16:46:51 -0400 Received: from lemuria.org by mail.lemuria.org via rsmtp with bsmtp id for ; Fri, 18 Aug 2000 22:36:40 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Received: by lemuria.org via sendmail with stdio id for dvd-discuss@eon.law.harvard.edu; Fri, 18 Aug 2000 22:32:12 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Date: Fri, 18 Aug 2000 22:32:12 +0200 From: Tom Vogt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Kaplan on the chain of authority Message-ID: <20000818223212.C10783@lemuria.org> References: <399D953C.4857170@uic.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0pre3i In-Reply-To: <399D953C.4857170@uic.edu> X-Privacy: If you can, please encrypt your mails - finger for key Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu John Schulien wrote: > My point was that the drives are sold bundled with software, > so that box you pick up at the computer store, pay for at the register, > and take home contains a player key. what if I sell you my used drive, but without the software (say, I lost the CD or it got damaged) ? -- "The net treats censorship as a malfunction and re-routes around it." (John Gilmore) From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 18 16:46:47 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA29627 for dvd-discuss-outgoing; Fri, 18 Aug 2000 16:46:47 -0400 Received: from mail.lemuria.org (lemuria.borgfelde.ricardo.de [195.244.103.65]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id QAA29624 for ; Fri, 18 Aug 2000 16:46:46 -0400 Received: from lemuria.org by mail.lemuria.org via rsmtp with bsmtp id for ; Fri, 18 Aug 2000 22:36:40 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Received: by lemuria.org via sendmail with stdio id for dvd-discuss@eon.law.harvard.edu; Fri, 18 Aug 2000 22:29:43 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Date: Fri, 18 Aug 2000 22:29:43 +0200 From: Tom Vogt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] introduction Message-ID: <20000818222943.A10783@lemuria.org> References: Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0pre3i In-Reply-To: X-Privacy: If you can, please encrypt your mails - finger for key Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu "Harold Eaton" wrote: > Um, I'm not sure I understand the purpose of this. I think it would > be better to make a DVD to which you as copyright owner don't > authorize to be used with anything *other* than DeCSS, so that > CSS becomes the circumventor. Regardless, can you please expand > upon what it is you want to do exactly? that, basically, was the idea. I want a DVD that you need DeCSS for. the whole idea is very unfinished, and getting it polished was one of the reasons I got invited here, I guess. -- "The net treats censorship as a malfunction and re-routes around it." (John Gilmore) From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 18 16:50:47 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA29758 for dvd-discuss-outgoing; Fri, 18 Aug 2000 16:50:47 -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 QAA29755 for ; Fri, 18 Aug 2000 16:50:46 -0400 Message-ID: <20000818205013.1227.qmail@web509.mail.yahoo.com> Received: from [131.44.121.4] by web509.mail.yahoo.com; Fri, 18 Aug 2000 13:50:13 PDT Date: Fri, 18 Aug 2000 13:50:13 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] LiViD To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-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: > On Fri, Aug 18, 2000 at 10:03:12AM -0700, Bryan Taylor wrote: > > C) You will do so by posting it on a web server in Dallas TX > under the jurisdiction of the 5th Circuit > > As far as I can tell LiViD's site (linuxvideo.org) is hosted in > Germany. Are you saying it would be beneficial to move it to > somewhere within the 5th Circuit? The goal would be to file in the 5th Circuit, where Vault is law. If there is no connection to the 5th Circuit, I'm sure the judge would say "why are you here". I think all that would be required is to propose to create a mirror in Texas, so you can answer "I think this is legal. The MPAA does not. We want a declaratory judgement so we can't be accused of violating the law." Basically, the MPAA used a lot of strategy in picking the particular defendents to sue. They'll attack again, but now they have a precedent. I think it's better to do a preemptive strike, so that we can choose the forum. Moreover, throwing in an antitrust claim against the DVD-CCA and studios might just put this in perspective. There would be a HUGE advantage to being the plaintiffs and getting to frame the issues. I suspect that such a matter could go pretty quickly, and it might even help the 2nd Circuit Appeal to win it. This is a fight. LiViD is in the gunsights of the movie industry, since it represents control of the player market. The want their proprietary protocal to be beyond reverse engineering. The open source communicty needs a bright line standard that says to qualify for the RE exception you must do X,Y,Z. A good place to do that is in the 5th Circuit. I guarantee that EVERY protocol will be encrypted soon if that is what it takes to put it beyond reverse engineering. __________________________________________________ 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 Aug 18 16:57:07 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA29977 for dvd-discuss-outgoing; Fri, 18 Aug 2000 16:57:07 -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 QAA29973 for ; Fri, 18 Aug 2000 16:56:55 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id RAA02321 for dvd-discuss@eon.law.harvard.edu; Fri, 18 Aug 2000 17:04:27 -0400 Date: Fri, 18 Aug 2000 17:04:22 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] introduction Message-ID: <20000818170422.C1777@eldritchpress.org> References: Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: ; from haceaton@hotmail.com on Fri, Aug 18, 2000 at 03:39:22PM -0400 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, Aug 18, 2000 at 03:39:22PM -0400, Harold Eaton wrote: > Tom Vogt wrote: > > >my name's above. I'm one of the 23 named defendants in the california > >case, and I'm also the only one of them who still has his site online > >(I just recently added DeCSS Plus to it). > > > > > >I joined this list by invitation from eric eldred. I contacted him > >about his /. posting. in short, my idea (based on his posting) is to > >create a DVD that - according to kaplan's ruling - can not be legally > >accessed even though it contains only perfectly legal content and even > >though the creator/copyright holder gives his explicit consent. > > Um, I'm not sure I understand the purpose of this. I think it would > be better to make a DVD to which you as copyright owner don't > authorize to be used with anything *other* than DeCSS, so that > CSS becomes the circumventor. Regardless, can you please expand > upon what it is you want to do exactly? Yes, it was my idea (more or less) and Tom picked up on my offer to help implement it. My suggestion on Slashdot (and also earlier here) was for the Free Software Foundation (or some other group) to produce a DVD full of Free Software--copyrighted, but under the GPL or BSD or another license that allows copying under certain circumstances. The disc would also include DeCSS, at least in source form. As you also suggest, the license should be plain. The disc would be CSS-encrypted. I'm not up on the technical details of this (Jim Taylor, are you still reading this?). Either the reverse engineering of DeCSS could be used to generate the VOB files--or the group could simply pay $9,200 to get a membership in DVD-CCA. But, critically, as you suggest, the license that is actually provided on the disc (and with an accompanying floppy disc containing DeCSS and player software) should specify that *only DeCSS* is to be used to decrypt the files and copy them to the user's hard disk. This authorization would be specifically from the copyright holders. True, there might be some difficulties in getting a DVD disc manufacturer to accept the job of making the discs. If so, they might open themselves to some lawsuits about restraint of trade. It would also reveal the exact content of licenses and the authority model. If, technically, it is not feasible to generate a DVD of software, then some video could be generated in its place, again covered by some open source license, and along with a license that requires DeCSS as the decryption tool. There might be a suit by DVD-CCA under trade secret law. Then it would be necessary to prove that DeCSS or whatever means of encryption were used were derived from clean room reverse engineering and not a theft of trade secrets. This project avoids the impression that the Free Software advocates are a bunch of pirates who only steal content from the professional movie studios, musicians, and Microsoft. The content would be viewed and used only with the authorization of the copyright holder, under 1201--and the user is specified to use *only* DeCSS to decrypt. Please separate the legal questions on this matter from the technical and financial ones, if possible. If you want me to take this offline, I'll do so. But it might be a way for us to introduce our ideas into a case that does test the "overbreadth" argument that Kaplan hasn't been willing to deal with so far. The MPAA has chosen their first targets in 2600. We ought to choose our own strategy and counterattack. Only this way can we make the law clear. From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 18 16:58:06 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA30111 for dvd-discuss-outgoing; Fri, 18 Aug 2000 16:58:06 -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 QAA30108 for ; Fri, 18 Aug 2000 16:58:05 -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 QAA23310 for ; Fri, 18 Aug 2000 16:58:03 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id QAA02205; Fri, 18 Aug 2000 16:58:01 -0400 (EDT) Date: Fri, 18 Aug 2000 16:58:01 -0400 (EDT) Message-Id: <200008182058.QAA02205@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Statutory blunders, was: the Fair Use doctrine In-Reply-To: <20000818164128.B1777@eldritchpress.org> References: <20000818153607.3658.qmail@web509.mail.yahoo.com> <20000818121939.A1291@localhost> <20000818164128.B1777@eldritchpress.org> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Eric Eldred writes: > It seems pretty plain that the MPAA is writing the specifications > for the law to preserve their economic interests, and then buying > the politicians and others to pass the laws with the "right" > specifications that will be interpreted in the "right" way by > judges and enforced in the "right" way by prosecutors and police. > In the days of James Fisher & Co the publishers hired goon squads > to break up and burn down their competitors. Nowadays they hire > a flying squad of expensive lawyers and do it more smoothly. Ummm... that's what they're *trying* to do. The point of Paul's message (well, one of them), is that they didn't entirely succeed in Congress --- and that there are provisions in the law itself which could easily lead appeals courts to take a different view of the matter if the defense does a good job of calling them to the courts' attention. The courts aren't the only arena in which this fight is being fought; there's also Congress, the media and public opinion, and technical developments; and each of these things to some extent influences the others. This might be a good time to take a good honest look at where we are, and how well we've been served in each of these areas. But I think it's early *yet* to give up on the courts entirely. rst From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 18 17:05:04 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA30257 for dvd-discuss-outgoing; Fri, 18 Aug 2000 17:05:04 -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 RAA30254 for ; Fri, 18 Aug 2000 17:04:52 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id RAA02338 for dvd-discuss@eon.law.harvard.edu; Fri, 18 Aug 2000 17:12:25 -0400 Date: Fri, 18 Aug 2000 17:12:20 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] LiViD Message-ID: <20000818171220.D1777@eldritchpress.org> References: <20000818215358.A9727@inka.de> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: ; from sterno@bigbrother.net on Fri, Aug 18, 2000 at 03:09:02PM -0500 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, Aug 18, 2000 at 03:09:02PM -0500, Steve Stearns wrote: > On Fri, 18 Aug 2000, Sham Gardner wrote: > > > On Fri, Aug 18, 2000 at 10:03:12AM -0700, Bryan Taylor wrote: > > > C) You will do so by posting it on a web server in Dallas TX under > > > the jurisdiction of the 5th Circuit > > As far as I can tell LiViD's site (linuxvideo.org) is hosted in Germany. > > Are you saying it would be beneficial to move it to somewhere within the > > 5th Circuit? > > Well, for the overall issue it may be more of a benefit if LiViD were in > the 5th Circuit. Right now, a distribution site in Germany > can't be touched by U.S. copyright law, but if somebody within the > U.S. were to link to it or mirror it, it might become an issue. If LiViD > were moved to the 5th Circuit, then there could be a ruling that declared > it officially legal which would offer some protection to redistribution > within the U.S. > > Question though: if I'm in a different circuit, would a ruling in the 5th > circuit help me if I was redistributing LiViD? Not sure about this--any lawyers want to comment? It seems to me that it might be a good idea to produce the DVD (I talk about it in another thread) in a country that has not signed WIPO. Then import the discs into the U.S. at one point strategically chosen for its circuit court judges. If importing is ruled illegal, then we might have a case against the U.S. for international restraint of free trade in violation of GATT. After all, this is what this case is about. Hollywood wants to maintain a monopoly on video content and it needs the most favorable laws in the U.S. to enhance its business model. The Europeans, for example, or Japanese, are net importers of U.S. intellectual property and are not so interested in restraint of free trade the same way (DMCA goes beyond WIPO). The case then would move away from copyright law as 1201 sees it, to the DVD-CCA licensing and control over global DVD disc production. It would focus on LiViD and not DeCSS, really. From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 18 17:05:49 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA30266 for dvd-discuss-outgoing; Fri, 18 Aug 2000 17:05:49 -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 RAA30263 for ; Fri, 18 Aug 2000 17:05:47 -0400 Message-ID: <20000818210515.11636.qmail@web510.mail.yahoo.com> Received: from [131.44.121.4] by web510.mail.yahoo.com; Fri, 18 Aug 2000 14:05:15 PDT Date: Fri, 18 Aug 2000 14:05:15 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] introduction To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --- Tom Vogt wrote: > way outside california - I'm a german citizen, I've never been to > california in my life, and my webserver is also here in germany. How funny. Did you know that you were bound by California state law? I am reminded of a certain scene in Monty Python's The Holy Grail where the Frenchman is not impressed with the King. I'm just curious: Does Germany recognize shrinkwrap/clickwrap contracts? Does Germany law reject contract terms that ban reverse engineering? > > What is DeCSS Plus? > a decss implementation without the controversial xing player key. Oh, nice. I was wondering when this would appear. I assume this uses Stevenson's cryptanalysis methods. __________________________________________________ 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 Aug 18 17:07:12 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA30348 for dvd-discuss-outgoing; Fri, 18 Aug 2000 17:07:12 -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 RAA30345 for ; Fri, 18 Aug 2000 17:07:11 -0400 Received: from mediaone.net (h0060b03c5b8b.ne.mediaone.net [24.128.18.77]) by chmls05.mediaone.net (8.8.7/8.8.7) with ESMTP id RAA25944 for ; Fri, 18 Aug 2000 17:07:08 -0400 (EDT) Message-ID: <399DA57C.DB94681B@mediaone.net> Date: Fri, 18 Aug 2000 17:07:08 -0400 From: Sphere X-Mailer: Mozilla 4.73 [en] (WinNT; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Kaplan Decision for MPAA References: <20000811060959.14254.qmail@web123.yahoomail.com> <200008181019.GAA32621@blount.mail.mindspring.net> <399D192A.77A74B1B@mediaone.net> <200008181318.JAA00975@soggy-fibers.ai.mit.edu> <200008181401.KAA12389@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: > > Robert S. Thau writes: > > And --- remind me again --- doesn't the Buddhist faith that you claim > > to profess preach emotional *detachment* from worldly matters? > > > > Sheesh. > > Sorry, Sphere --- I got carried away here. Looks like I need to work > on emotional attachment myself --- I don't think religious discussion > is really belongs here, but certainly doesn't when phrased like this. > Apologies. > > Too early. Must get coffee. Sigh... > > rst > I think it only belongs here to the extent it can be made useful; which I think it can. Not being a "True Believer" myself, but only a "fellow traveller" I can only provide hints at their motivations. The motivations out there are mixed. There are some who hard-core anarchists, and their goal will be to bring down the corporate structure, not win friends in the legal community. At some point these people are going to "take matters in hand." 2600 is seen by some as sort of "their" magazine, so this point in time has some likelihood of being "the" time. There are others who just basically believe in a plain reading of the first amendment, and they don't see legalese as their friend either. The phrase "Information wants to be free" is not a short course in economics. How the existence of "True Believers" can be made useful is not totally clear, but I think just a description of their existence has some usefullness here in its' own right. (BTW -- Making generalizations about Buddhism is about the same as considering all Christians to be Coptic.) -- Sphere. No permanence. No self. No perfection. From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 18 17:10:44 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA30423 for dvd-discuss-outgoing; Fri, 18 Aug 2000 17:10:44 -0400 Received: from mail.airbridge.net ([204.147.60.220]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA30420 for ; Fri, 18 Aug 2000 17:10:43 -0400 Received: from agape.murphy.cx ([166.84.198.139]) by mail.airbridge.net (Netscape Messaging Server 3.6) with ESMTP id AAA4C4D for ; Fri, 18 Aug 2000 17:11:11 -0400 Received: (from murphy@localhost) by agape.murphy.cx (8.9.3/8.8.7) id RAA01382 for dvd-discuss@eon.law.harvard.edu; Fri, 18 Aug 2000 17:11:21 -0400 Date: Fri, 18 Aug 2000 17:11:20 -0400 From: Roy Murphy To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Re: your mail Message-ID: <20000818171120.A1272@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 Fri, Aug 18, 2000 at 12:08:55PM -0500, thus spake tim: > Can someone tell us non-lawyerly geeks what happens next? If the court of > appeals sees something wrong with Kaplan's ruling or the trial itself, > they just send the case back to Kaplan, don't they? That depends on the ruling. If the ruling is that the DCMA is unconstitutional (unlikely, though possible), there's no case to go back. If the ruling is that the correct legal test was not applied (i.e. Kaplan must apply a certain analysis of the authority model or explicitly consider fair uses as a significant, non-circumventing use) then it goes back to him to apply the new test. If Kaplan improperly disallowed the admission of certain evidence, a new trial may be necessary. -- 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 Fri Aug 18 17:12:18 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA30522 for dvd-discuss-outgoing; Fri, 18 Aug 2000 17:12:18 -0400 Received: from bigbrother.net (root@w131.z208177180.chi-il.dsl.cnc.net [208.177.180.131]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA30519 for ; Fri, 18 Aug 2000 17:12:17 -0400 Received: from localhost (sterno@localhost) by bigbrother.net (8.10.1/8.9.3) with ESMTP id e7ILCHG23367 for ; Fri, 18 Aug 2000 16:12:17 -0500 Date: Fri, 18 Aug 2000 16:12:17 -0500 (CDT) From: Steve Stearns To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] LiViD In-Reply-To: <20000818171220.D1777@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, 18 Aug 2000, Eric Eldred wrote: > If importing is ruled illegal, then we might have a > case against the U.S. for international restraint of > free trade in violation of GATT. That seems like a risk proposition. You're leaving it up to an international body to decide, which may agree with the U.S. right to do so. The other potential problem here is that even if they tell the U.S. you can't make it illegal it doesn't mean the U.S. has to listen. The big problem with the international organizations is they effectively have no teeth. ---Steve From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 18 17:14:02 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA30566 for dvd-discuss-outgoing; Fri, 18 Aug 2000 17:14:02 -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 RAA30563 for ; Fri, 18 Aug 2000 17:14:00 -0400 Received: from sites.inka.de (puric.inka.de [212.227.14.17]) by mail.inka.de with esmtp id 13PtSf-0006lD-00; Fri, 18 Aug 2000 23:13:57 +0200 Received: from localhost by sites.inka.de with local id 13PtSh-0003DG-00; Fri, 18 Aug 2000 23:13:59 +0200 Date: Fri, 18 Aug 2000 23:13:59 +0200 From: Sham Gardner To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] introduction Message-ID: <20000818231358.A11418@inka.de> References: <20000818210515.11636.qmail@web510.mail.yahoo.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0i In-Reply-To: <20000818210515.11636.qmail@web510.mail.yahoo.com>; from bryan_w_taylor@yahoo.com on Fri, Aug 18, 2000 at 02:05:15PM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, Aug 18, 2000 at 02:05:15PM -0700, Bryan Taylor wrote: > I'm just curious: > Does Germany recognize shrinkwrap/clickwrap contracts? > Does Germany law reject contract terms that ban reverse engineering? >From what I've heard, no to both, but IANAL. > > > What is DeCSS Plus? > > a decss implementation without the controversial xing player key. > > Oh, nice. I was wondering when this would appear. I assume this uses > Stevenson's cryptanalysis methods. According to its readme file it does something he suggested might be possible on this list, namely brute forcing the title key based on "guessing" a few bytes of encypted MPEG data using unencrypted data immedaitely preceding it. Tom's site is lemuria.org (I hope you don't mind me saying this, I guessd it based on your email address), I've also mirrored it on my site (below). Sham -- http://sites.inka.de/risctaker/DeCSS/ "The first speech censored, the first thought forbidden, the first freedom denied, chains us all irrevocably." (Jean-Luc Picard) From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 18 17:15:39 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA30609 for dvd-discuss-outgoing; Fri, 18 Aug 2000 17:15:39 -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 RAA30606 for ; Fri, 18 Aug 2000 17:15:28 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id RAA02378 for dvd-discuss@eon.law.harvard.edu; Fri, 18 Aug 2000 17:23:01 -0400 Date: Fri, 18 Aug 2000 17:22:56 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] introduction Message-ID: <20000818172255.F1777@eldritchpress.org> References: <20000818210635.A28207@lemuria.org> <200008181935.PAA10100@soggy-fibers.ai.mit.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <200008181935.PAA10100@soggy-fibers.ai.mit.edu>; from rst@ai.mit.edu on Fri, Aug 18, 2000 at 03:35:17PM -0400 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Sorry, Robert. I didn't get a chance to explain the whole project. Yes, the disc would not be produced with no CSS scrambling--that would prove nothing. It would have to be CSS encrypted, and the disc would have to come with a license to use DeCSS to decrypt. And DeCSS would be on the disc and a floppy too. Then the question would be if Kaplan's ruling would prevent "trafficking" in technology that *is* used with the authorization of the copyright holder. It would bring into sharp focus just what authority model is being used by DVD-CCA. Of course, the project would not work unless such a disc could be produced and sold. Any ideas on that? On Fri, Aug 18, 2000 at 03:35:17PM -0400, Robert S. Thau wrote: > Tom Vogt writes: > > I joined this list by invitation from eric eldred. I contacted him > > about his /. posting. in short, my idea (based on his posting) is to > > create a DVD that - according to kaplan's ruling - can not be legally > > accessed even though it contains only perfectly legal content and even > > though the creator/copyright holder gives his explicit consent. > > > The CSS technology is technology that we have constructed in order to > protect our own works. Mr. Vogt does not desire such protection. > That is his privilege, and we have no quarrel. He need merely produce > a DVD with no CSS scrambling --- an entirely legal procedure for which > commercial tools are readily available from a variety of sources. > (insert results of "DVD mastering" web search here). > > Such unprotected DVDs may be used in exactly the same way as our > CSS-protected DVDs. Any legitimate, licensed, DVD player will play > them, including those which incorporate CSS technology. So, anyone > who wishes to produce such an unprotected disk has the tools > available, and neither CSS technology nor the DMCA poses any hindrance > whatever. > > In short, Mr. Vogt has all the lawful tools needed to produce a disk > that will function exactly as he desires, readily at his disposal. > How can he claim then that his rights to pursue any lawful purpose are > being violated by the DMCA, or by CSS technology? > > What he has done, instead, is analogous to putting a lock on his own > door, throwing away the key, and then complaining that "locksmithing > technology" is denying him the right to access his own property. The > claim is obviously frivolous, and does not merit a moment's attention > from the court. > > > Seriously, this argument has struck me as awfully weak. If you > demonstrate that *the movie studios* are gaining effective indefinite > copyright by putting works that have passed into the public domain > onto copy-protected media, that's something different; you have > demonstrated real harm. But if you produce the disk yourself, you > can't make that claim --- you obviously had full, unimpeded access to > all the source material, or you couldn't have (lawfully) created the > darn thing in the first place. > > rst > -- "Eric" Eric Eldred Eldritch Press mailto:Eldred@EldritchPress.org http://www.eldritchpress.org/EricEldred.vcf From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 18 17:21:09 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA30664 for dvd-discuss-outgoing; Fri, 18 Aug 2000 17:21:09 -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 RAA30661 for ; Fri, 18 Aug 2000 17:21:09 -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 RAA26740 for ; Fri, 18 Aug 2000 17:21:07 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id RAA08383; Fri, 18 Aug 2000 17:21:06 -0400 (EDT) Date: Fri, 18 Aug 2000 17:21:06 -0400 (EDT) Message-Id: <200008182121.RAA08383@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] LiViD In-Reply-To: References: <20000818171220.D1777@eldritchpress.org> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Steve Stearns writes: > On Fri, 18 Aug 2000, Eric Eldred wrote: > > > If importing is ruled illegal, then we might have a > > case against the U.S. for international restraint of > > free trade in violation of GATT. > > That seems like a risk proposition. You're leaving it up to an > international body to decide, which may agree with the U.S. right to do > so. The other potential problem here is that even if they tell the > U.S. you can't make it illegal it doesn't mean the U.S. has to > listen. The big problem with the international organizations is they > effectively have no teeth. Note also that the most immediately relevant international organization is likely WIPO, and the DMCA (or at least, the anticircumvention provisions of it) was actually passed as the enabling legislation for United States ratification of the WIPO treaties. rst From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 18 17:21:36 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA30672 for dvd-discuss-outgoing; Fri, 18 Aug 2000 17:21:36 -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 RAA30669 for ; Fri, 18 Aug 2000 17:21:35 -0400 Received: from sites.inka.de (puric.inka.de [212.227.14.17]) by mail.inka.de with esmtp id 13Pta0-0006x9-00; Fri, 18 Aug 2000 23:21:32 +0200 Received: from localhost by sites.inka.de with local id 13Pta1-0003GD-00; Fri, 18 Aug 2000 23:21:33 +0200 Date: Fri, 18 Aug 2000 23:21:33 +0200 From: Sham Gardner To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] introduction Message-ID: <20000818232133.B11418@inka.de> References: <20000818210635.A28207@lemuria.org> <200008181935.PAA10100@soggy-fibers.ai.mit.edu> <20000818172255.F1777@eldritchpress.org> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0i In-Reply-To: <20000818172255.F1777@eldritchpress.org>; from eldred@eldritchpress.org on Fri, Aug 18, 2000 at 05:22:56PM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, Aug 18, 2000 at 05:22:56PM -0400, Eric Eldred wrote: > Sorry, Robert. I didn't get a chance to explain the > whole project. Yes, the disc would not be produced > with no CSS scrambling--that would prove nothing. > > It would have to be CSS encrypted, and the disc would > have to come with a license to use DeCSS to decrypt. > And DeCSS would be on the disc and a floppy too. Do you intend to encyrpt the disc "officially" with a license from the DVDCCA or by reversing the DeCSS algorithms? If it's the former, then you should consider the possibility that the CSS license for content providers may prohibit you from granting users the authority to use unlicensed decyrption devices. Sham -- http://sites.inka.de/risctaker/DeCSS/ "The first speech censored, the first thought forbidden, the first freedom denied, chains us all irrevocably." (Jean-Luc Picard) From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 18 17:22:28 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA30763 for dvd-discuss-outgoing; Fri, 18 Aug 2000 17:22:28 -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 RAA30760 for ; Fri, 18 Aug 2000 17:22:27 -0400 Received: from ip147.bedford.ma.pub-ip.psi.net ([38.32.9.147]) by relay21.smtp.psi.net with smtp (Exim 3.13 #3) id 13Ptaq-0001ZY-00 for dvd-discuss@eon.law.harvard.edu; Fri, 18 Aug 2000 17:22:24 -0400 From: Ron Gustavson To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] introduction Date: Fri, 18 Aug 2000 17:16:02 -0400 Message-ID: References: <20000818222943.A10783@lemuria.org> In-Reply-To: <20000818222943.A10783@lemuria.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 RAA30761 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, 18 Aug 2000 22:29:43 +0200, Tom Vogt wrote: >that, basically, was the idea. I want a DVD that you need DeCSS for. the >whole idea is very unfinished, and getting it polished was one of the >reasons I got invited here, I guess. Might LiViD and/or DeCSS add their own keys to the player keys and require that? This would have the added PR benefit of causing all 39,000 of Kaplan's kayakers to seek out and dl the new improved DeCSS all over again, likely adding another few thousand to the fold. This time, no mirrors or hyperlinks though--only use AOL and the Go search engine. Along these lines I've been thinking of a CD-R "protection" measure to use more as a demo than actual copy-protection. Might a server offer ISO images of [say, an original DiVX short film] that are custom-encrypted to the visitors' PGP key? Or perhaps it could use the CSS algorithim and a new player key instead (without the disk and bus keys?) These short films could be downloaded and burnt to CD-R by the end-user. By concentrating on CD-R, instead of DVD, we can produce something that can be burnt at home. __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 18 17:25:11 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA30875 for dvd-discuss-outgoing; Fri, 18 Aug 2000 17:25:11 -0400 Received: from charon.cargill.com (charon.cargill.com [167.136.225.225]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA30872 for ; Fri, 18 Aug 2000 17:25:10 -0400 Received: from hermes.cargill.com (hermes.cargill.com [167.136.226.140]) by charon.cargill.com (8.8.8/8.8.8) with ESMTP id QAA27477 for ; Fri, 18 Aug 2000 16:25:06 -0500 (CDT) Received: from cdmpls02m.cdpoly.cargill.com (cdmpls02m.cdpoly.cargill.com [10.25.1.21]) by hermes.cargill.com (8.8.8/8.8.8) with ESMTP id QAA24175 for ; Fri, 18 Aug 2000 16:25:06 -0500 (CDT) Received: by cdmpls02m.cdpoly.cargill.com with Internet Mail Service (5.5.2448.0) id ; Fri, 18 Aug 2000 16:23:48 -0500 Message-ID: From: "Kroll, Dave" To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] introduction Date: Fri, 18 Aug 2000 16:23:45 -0500 MIME-Version: 1.0 X-Mailer: Internet Mail Service (5.5.2448.0) Content-Type: text/plain Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Would it be legal for a publisher to encode a DVD with CSS without being a part of the consortium? David Kroll QA Coordinator 612-882-6452 Dave_Kroll@cdpoly.com -----Original Message----- From: Tom Vogt [SMTP:tom@lemuria.org] Sent: Friday, August 18, 2000 3:30 PM To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] introduction "Harold Eaton" wrote: > Um, I'm not sure I understand the purpose of this. I think it would > be better to make a DVD to which you as copyright owner don't > authorize to be used with anything *other* than DeCSS, so that > CSS becomes the circumventor. Regardless, can you please expand > upon what it is you want to do exactly? that, basically, was the idea. I want a DVD that you need DeCSS for. the whole idea is very unfinished, and getting it polished was one of the reasons I got invited here, I guess. -- "The net treats censorship as a malfunction and re-routes around it." (John Gilmore) From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 18 17:36:46 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA30992 for dvd-discuss-outgoing; Fri, 18 Aug 2000 17:36:46 -0400 Received: from mail.lemuria.org (lemuria.borgfelde.ricardo.de [195.244.103.65]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id RAA30989 for ; Fri, 18 Aug 2000 17:36:45 -0400 Received: from lemuria.org by mail.lemuria.org via rsmtp with bsmtp id for ; Fri, 18 Aug 2000 23:26:36 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Received: by lemuria.org via sendmail with stdio id for dvd-discuss@eon.law.harvard.edu; Fri, 18 Aug 2000 23:23:58 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Date: Fri, 18 Aug 2000 23:23:58 +0200 From: Tom Vogt To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] california jurisdiction question Message-ID: <20000818232358.A10977@lemuria.org> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0pre3i X-Privacy: If you can, please encrypt your mails - finger for key Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu someone here asked about the jurisdiction. I replied that I'm from germany. the DVD CCA lawyers have filed for an "entry of default", which is - as far as I understand the matter - a bad thing. obviously, the whole case is ridiculous as far as it concerns me. what's next? a peking court suing me because my webpage doesn't contain a chinese translation? I found out that it can cost me around $10k to have a lawyer say basically what I said above, namely that I'm outside the court's jurisdiction. obviously, it's even more ridiculous to spend that kind of money on something that is so silly it hurts. however, in order to avoid the entry of default, I'm pondering sending a letter to the court, without involving a lawyer. here's the latest draft of it. if you want, you can tell me whether I'm doing something extraordinarily stupid here. ================================================================== Please excuse the possibly uncommon way I am using to bring these facts to your attention, but I have very limited knowledge of the american legal system and neither contacts nor resources to find a more appropriate one. I am one of the 23 named defendants in the case no. CV-786804, DVD CCA v. Andrew McLaughlin et al. I have recently learned that something called an "entry of default" is being asked of you from Weil, Gotshal & Manges. If this informal way allows for it, I would like to ask you to consider the following facts before issuing a judgement on someone over 5000 miles away. The purpose of this letter is to show that the Superior Court of the State of California has no jurisdiction over me. There is most likely a more formal way to formulate such a statement, but I do not have the resources, knowledge or contacts to hire a lawyer on the other side of the planet in order to file papers for me. I write in the hope that a fact does not stop being a fact because it is written about by a layman in english, instead of by a lawyer in legalese. If this is not the case in the american legal system, then please accept my apologies for wasting your time. The facts: a) I am a german citizen and have been since my birth b) I have never been to California in my life c) I do not have and never had any kind of business contact to california companies or california residents d) I have never worked for a california company, or ever sold any work or product to a california company or resident e) The webserver that contains the disputed webpage (http://www.lemuria.org/DeCSS/) is and always has been physically located in Germany. f) I had never heard about DVD CCA before I received letters from their lawyers. This, of course, also means I did not have any contact to DVD CCA before this lawsuit. g) My only contact with the various movie companies that - as I understand it - are backing DVD CCA, is that I go to the cinema. h) I did not (prior to this lawsuit) have any contacts, ties or even interest in California that I believe would have even remote connections to this lawsuit. (I may have visited webpages that are physically located in California, or exchanged e-mails with california residents, in both cases unaware of their geographical location.) I hope that it is obvious from these facts, that I can not be expected to defend myself in a california court. I hope that the argument as brought forth is sufficient to remove all doubt from this fact, since I can neither afford nor consider right (in the ethical sense) to enter into any legal argument within the actual case. I consider the jurisdiction question to be the decisive - and only - point concerning me in this matter. -- "The net treats censorship as a malfunction and re-routes around it." (John Gilmore) From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 18 17:41:27 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA31110 for dvd-discuss-outgoing; Fri, 18 Aug 2000 17:41:27 -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 RAA31107 for ; Fri, 18 Aug 2000 17:41:26 -0400 Message-ID: <20000818214054.6232.qmail@web514.mail.yahoo.com> Received: from [131.44.121.4] by web514.mail.yahoo.com; Fri, 18 Aug 2000 14:40:54 PDT Date: Fri, 18 Aug 2000 14:40:54 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] LiViD To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-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: > > E) State clearly that LiViD does not allow storage of the > > decrypted media on the hard drive > > But using css-cat _does_ allow storing of the decrypted data, > anywhere the user wants. Are you recommending that this > functionality be removed? IIRC, Pavlovich testified that the alpha-level player he was ready to demonstrate did not store the decrypted file on the harddrive, but rather, functioned exactly like a licenced player. This compeleted player is different from css-cat, which, one could argue was a utility which existed only to foster the development of the final product. If I have my facts correct, the end product player, is not useful for piracy, having been designed to prevent this in exactly the same way as the licenced players. > But how are you going to prevent people from fiddling the source > code to re-enable the features that scare the MPAA? Perhaps the > source code should be hidden! The DMCA does not ban this. It would only bans distribution of the modified tools. By the way, this is true for all programs distributed in source code form, including empty files. How are you going to prevent someone from modifiying emacs to store decrypted DVD's on disk? It also doesn't really make sense to only make this objection for source code. > In short, there is no feature set that it going to be agreed upon > between free-software developers and MPAA/DVDCCA, so I think > pretending that developers are going to kindly cripple their > software and their methods to please the MPAA is a mistake. I think you miss my point. I'm aumming that and relying on the DVD-CCA objecting, which then allows us to frame the issue favorably to our side and go before a judge to ask for a declaration that we are right. > So 2.E should be stricken from the list. I'm not talking about css-cat, though. If I have my facts wrong about the final player, then perhaps such features should be added. I really do want to be able to watch DVD's on open source software. By saying "OK this particular GPL'd tool CANNOT be used for piracy" are argument gets MUCH stronger. Kaplan found enough clutter in the MPAA spin to avoid answering the question framed the way the we wanted to frame it. We need to quit being the victim and start attacking, on our terms, in forums of our choosing. __________________________________________________ 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 Aug 18 17:46:55 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA31194 for dvd-discuss-outgoing; Fri, 18 Aug 2000 17:46:55 -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 RAA31191 for ; Fri, 18 Aug 2000 17:46:54 -0400 Received: by chiara.elte.hu (Postfix, from userid 17806) id 175C97E1B8; Fri, 18 Aug 2000 23:46:50 +0200 (CEST) Date: Fri, 18 Aug 2000 23:56:05 +0200 (CEST) From: Ingo Molnar To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] LiViD In-Reply-To: <20000818154347.A19078@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 Fri, 18 Aug 2000, Eric Seppanen wrote: > [...] But how are you going to prevent people from fiddling the source > code to re-enable the features that scare the MPAA? [...] well, the same argument goes for the Xing player - the Xing player enables (relatively simple) DVD rippers. What others might be able to do with the binary or with the source is irrelevant, as long as it does not copy. Kaplan got it wrong in the DeCSS case as well [none of the authors of DeCSS pirated any DVD] - but LiViD is a better example for tech-illiterate people. It clearly cannot be mis-labled as a 'tool for piracy'. Ingo From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 18 18:06:49 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA32240 for dvd-discuss-outgoing; Fri, 18 Aug 2000 18:06:49 -0400 Received: from mail.lemuria.org (lemuria.borgfelde.ricardo.de [195.244.103.65]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id SAA32236 for ; Fri, 18 Aug 2000 18:06:47 -0400 Received: from lemuria.org by mail.lemuria.org via rsmtp with bsmtp id for ; Sat, 19 Aug 2000 00:00:11 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Received: by lemuria.org via sendmail with stdio id for dvd-discuss@eon.law.harvard.edu; Fri, 18 Aug 2000 23:42:05 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Date: Fri, 18 Aug 2000 23:42:05 +0200 From: Tom Vogt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] introduction Message-ID: <20000818234205.B11068@lemuria.org> References: <20000818210515.11636.qmail@web510.mail.yahoo.com> <20000818231358.A11418@inka.de> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0pre3i In-Reply-To: <20000818231358.A11418@inka.de> X-Privacy: If you can, please encrypt your mails - finger for key Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Sham Gardner wrote: > According to its readme file it does something he suggested might be > possible on this list, namely brute forcing the title key based on > "guessing" a few bytes of encypted MPEG data using unencrypted data > immedaitely preceding it. it also comes with full source code, something I believe makes it even more interesting. I do, however, believe the name was ill-chosen. naming it differently might have required additional lawsuits to remove it. this way, I'm sure that DVDCCA/MPAA will just label it "another version of DeCSS". > Tom's site is lemuria.org (I hope you don't mind > me saying this, I guessd it based on your email address), I've also mirrored > it on my site (below). I don't mind - it's linked to from so many news sites that I lost count of them. I can't hide, so I'm going offense. I'm currently producing a copy of the site, minus the decss links, so that 2600 can continue to link me. of course, the new site will probably be something like decssREMOVEME. it'll be interesting to see how MPAA tries to get 2600 barred from linking to a site whose URL can be modified to turn it into a site that contains decss... -- "The net treats censorship as a malfunction and re-routes around it." (John Gilmore) From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 18 18:06:50 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA32247 for dvd-discuss-outgoing; Fri, 18 Aug 2000 18:06:50 -0400 Received: from mail.lemuria.org (lemuria.borgfelde.ricardo.de [195.244.103.65]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id SAA32241 for ; Fri, 18 Aug 2000 18:06:49 -0400 Received: from lemuria.org by mail.lemuria.org via rsmtp with bsmtp id for ; Sat, 19 Aug 2000 00:00:11 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Received: by lemuria.org via sendmail with stdio id for dvd-discuss@eon.law.harvard.edu; Fri, 18 Aug 2000 23:47:47 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Date: Fri, 18 Aug 2000 23:47:47 +0200 From: Tom Vogt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] introduction Message-ID: <20000818234747.C11068@lemuria.org> References: <20000818210635.A28207@lemuria.org> <200008181935.PAA10100@soggy-fibers.ai.mit.edu> <20000818172255.F1777@eldritchpress.org> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0pre3i In-Reply-To: <20000818172255.F1777@eldritchpress.org> X-Privacy: If you can, please encrypt your mails - finger for key Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Eric Eldred wrote: > Of course, the project would not work unless such a > disc could be produced and sold. Any ideas on that? I know someone who said he could do that. but let's make it legally bullet-proof first. -- "The net treats censorship as a malfunction and re-routes around it." (John Gilmore) From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 18 18:06:47 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA32232 for dvd-discuss-outgoing; Fri, 18 Aug 2000 18:06:47 -0400 Received: from mail.lemuria.org (lemuria.borgfelde.ricardo.de [195.244.103.65]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id SAA32228 for ; Fri, 18 Aug 2000 18:06:46 -0400 Received: from lemuria.org by mail.lemuria.org via rsmtp with bsmtp id for ; Sat, 19 Aug 2000 00:00:11 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Received: by lemuria.org via sendmail with stdio id for dvd-discuss@eon.law.harvard.edu; Fri, 18 Aug 2000 23:35:03 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Date: Fri, 18 Aug 2000 23:35:03 +0200 From: Tom Vogt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] introduction Message-ID: <20000818233502.A11068@lemuria.org> References: <20000818210515.11636.qmail@web510.mail.yahoo.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0pre3i In-Reply-To: <20000818210515.11636.qmail@web510.mail.yahoo.com> X-Privacy: If you can, please encrypt your mails - finger for key Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Bryan Taylor wrote: > > way outside california - I'm a german citizen, I've never been to > > california in my life, and my webserver is also here in germany. > > How funny. Did you know that you were bound by California state law? no, I didn't. and I'm not sure anymore whether that is funny, silly or sad. > I'm just curious: > Does Germany recognize shrinkwrap/clickwrap contracts? > Does Germany law reject contract terms that ban reverse engineering? IANAL etc., and I'm not very much up to date in these details. so, to the best of my knowledge: shrinkwrap/clickwrap licenses are untested in germany so far. german law explicitly allows reverse engineering for certain purposes, and I believe it declares that this right can not be taken away by contract. I do have references to the actual law on my webpage. if you're interested, take a look: http://www.lemuria.org/DeCSS - I don't remember where exactly it is, and I'm not online here (uucp mail). > > > What is DeCSS Plus? > > a decss implementation without the controversial xing player key. > > Oh, nice. I was wondering when this would appear. I assume this uses > Stevenson's cryptanalysis methods. that's what it does. -- "The net treats censorship as a malfunction and re-routes around it." (John Gilmore) From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 18 18:08:57 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA32423 for dvd-discuss-outgoing; Fri, 18 Aug 2000 18:08:57 -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 SAA32420 for ; Fri, 18 Aug 2000 18:08:56 -0400 Message-ID: <20000818220824.29497.qmail@web513.mail.yahoo.com> Received: from [131.44.121.4] by web513.mail.yahoo.com; Fri, 18 Aug 2000 15:08:24 PDT Date: Fri, 18 Aug 2000 15:08:24 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] Statutory blunders, was: the Fair Use doctrine To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-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 courts aren't the only arena in which this fight is being fought; > there's also Congress, the media and public opinion, and technical > developments; and each of these things to some extent influences the > others. This might be a good time to take a good honest look at > where we are, and how well we've been served in each of these > areas. But I think it's early *yet* to give up on the > courts entirely. Well said. Look, one judge didn't view it our way. It's way, WAY, to early to give up on the courts. Next we'll have a panel of three 2nd Circuit judges who will take a much more scholarly approach to the case. The MPAA was clearly fortunate to draw Kaplan. Nobody here thought we were playing round one on a level field. It'll be really nice to see this play out in a calmer, more scholarly, neutral setting. __________________________________________________ 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 Aug 18 18:15:03 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA32467 for dvd-discuss-outgoing; Fri, 18 Aug 2000 18:15:03 -0400 Received: from tbird.iworld.com ([63.236.72.237]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id SAA32464 for ; Fri, 18 Aug 2000 18:15:02 -0400 Received: (from nobody@localhost) by tbird.iworld.com (8.10.2/8.10.2) id e7IMEHI32524; Fri, 18 Aug 2000 18:14:17 -0400 Date: Fri, 18 Aug 2000 18:14:17 -0400 Message-Id: <200008182214.e7IMEHI32524@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 on the chain of authority Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Robert S. Thau wrote: >John Schulien writes: > > Therefore, DeCSS cannot "circumvent a technological measure" > > in the 1201(a)(3)(A) sense, because DeCSS can only function > > in conjunction with a DVD drive, and the purchase of a drive, > > according to Kaplan, is what conveys authority to decode DVDs. > > > > Or am I way off base ... > >It looks to me that, on Kaplan's view, it's purchase of *whatever >contains the player key* --- which would be the software player, and >not the DVD drive, if the two aren't bundled together. > >Which has the *very* odd consequence that "DOD ripper", which >captures the output of a licensed player, is perfectly legal, and >DeCSS isn't --- never mind that the sole purpose of "DOD ripper" is to >facilitate illegitimate copying, and DeCSS has other purposes which >look perfectly legitimate to us, such as allowing you to build your >a DVD player which won't be hobbled be region codes. > >But we've been through that before. Too bad we can't argue that the fact this mess produces contradictions that harm both the MPAA and honest users in ways that are unnatural shows that the DMCA is CONSISTENTLY FLAWED all over the whole spectrum of scenarios. Oh well. >rst 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 Fri Aug 18 18:26:17 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA32547 for dvd-discuss-outgoing; Fri, 18 Aug 2000 18:26:17 -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 SAA32544 for ; Fri, 18 Aug 2000 18:26:16 -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 RAA14131 for ; Fri, 18 Aug 2000 17:26:14 -0500 (CDT) Message-ID: <399DB850.94BEDBF0@uic.edu> Date: Fri, 18 Aug 2000 17:27:28 -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] Kaplan on the chain of 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 Tom Vogt writes: > John Schulien wrote: >> My point was that the drives are sold bundled with software, >> so that box you pick up at the computer store, pay for at the register, >> and take home contains a player key. > what if I sell you my used drive, but without the software (say, I lost the > CD or it got damaged) ? Ok, so maybe authority comes with the software instead of the physical drive. In that case, your drive would not come with authority, but the software would. One or the other. It doesn't really matter. The important thing is that authority does not come each time you push the "play" button, as the MPAA wanted Kaplan to find. If "authority" is tied to something you purchase, once you make that purchase you now have "authority of the copyright holders" to view DVDs, according to Kaplan. Whether you view them with the supplied software, or replacement software based on DeCSS should be irrelevant, because, according to Kaplan, the authority to view DVDs comes with the purchase of the thingie containing the player key, whatever that may be. From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 18 18:29:07 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA32657 for dvd-discuss-outgoing; Fri, 18 Aug 2000 18:29:07 -0400 Received: from hotmail.com (f195.law9.hotmail.com [64.4.9.195]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id SAA32654 for ; Fri, 18 Aug 2000 18:29:06 -0400 Received: from mail pickup service by hotmail.com with Microsoft SMTPSVC; Fri, 18 Aug 2000 15:28:34 -0700 Received: from 38.38.24.185 by lw9fd.law9.hotmail.msn.com with HTTP; Fri, 18 Aug 2000 GMT X-Originating-IP: [38.38.24.185] From: "Harold Eaton" To: dvd-discuss@eon.law.harvard.edu Subject: RE: [dvd-discuss] introduction Date: Fri, 18 Aug 2000 18:28:34 EDT Mime-Version: 1.0 Content-Type: text/plain; format=flowed Message-ID: X-OriginalArrivalTime: 18 Aug 2000 22:28:34.0083 (UTC) FILETIME=[A4FCFF30:01C00963] Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Dave Kroll wrote: >Would it be legal for a publisher to encode a DVD with CSS >without being a part of the consortium? I'm not sure about this in the United States. The only obstacle I can see is the CSS patents. I'll have to read them again to see what I think. In all likelihood the patents won't be a road block, but expect to get sued anyway. ________________________________________________________________________ Get Your Private, Free E-mail from MSN Hotmail at http://www.hotmail.com From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 18 18:34:32 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA32701 for dvd-discuss-outgoing; Fri, 18 Aug 2000 18:34:32 -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 SAA32698 for ; Fri, 18 Aug 2000 18:34:31 -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 RAA14688 for ; Fri, 18 Aug 2000 17:34:29 -0500 (CDT) Message-ID: <399DBA3F.C7BC94A4@uic.edu> Date: Fri, 18 Aug 2000 17:35:43 -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] Why 1201 is bad public policy. Content-Type: text/plain; charset=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 dvd-discuss-owner@eon.law.harvard.edu Fri Aug 18 18:38:10 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA32752 for dvd-discuss-outgoing; Fri, 18 Aug 2000 18:38:10 -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 SAA32749 for ; Fri, 18 Aug 2000 18:38:09 -0400 Received: from ip133.bedford9.ma.pub-ip.psi.net ([38.32.79.133]) by relay20.smtp.psi.net with smtp (Exim 3.13 #3) id 13Pum7-0005I6-00 for dvd-discuss@eon.law.harvard.edu; Fri, 18 Aug 2000 18:38:07 -0400 From: Ron Gustavson To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] introduction Date: Fri, 18 Aug 2000 18:31:45 -0400 Message-ID: References: <20000818222943.A10783@lemuria.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 SAA32750 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I wrote: >Might LiViD and/or DeCSS add their own keys to the player keys and require that? Looking at the CSS license schedule b/c... http://cryptome.org/dvdcca-css.zip There doesn't seem to be any requirement that replicators only use the CSS machinery to produce CSS-compliant discs; just that they don't reveal keys or reverse-engineer the thing. Although perhaps that antitrust-loaded requirement might come with the keys themselves, referred to as Confidential and Highly Confidential Information. Getting a new key [and plenty of cash] to a replicator might suffice(?) (Of course there's probably a technical gotcha in trying to apply a new key to the machinery.) Hint: if this is possible, you might dub the disc "Region #L." __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 18 18:38:03 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA32744 for dvd-discuss-outgoing; Fri, 18 Aug 2000 18:38:03 -0400 Received: from tbird.iworld.com ([63.236.72.237]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id SAA32741 for ; Fri, 18 Aug 2000 18:38:02 -0400 Received: (from nobody@localhost) by tbird.iworld.com (8.10.2/8.10.2) id e7IMbI601799; Fri, 18 Aug 2000 18:37:18 -0400 Date: Fri, 18 Aug 2000 18:37:18 -0400 Message-Id: <200008182237.e7IMbI601799@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] Statutory blunders, was: the Fair Use doctrine Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Eric Eldred wrote: >Since this is an open forum for all of us (not just lawyers) to >discuss the law and help make it work, I believe you are on the >right track and should not be blindsided by this decision. > >You should know that your attitude is commendable. Please read >"The Death of Common Sense: How Law is Suffocating America," by >Philip K. Howard, Warner Books, 1996, ISBN 0446672289. > >We have been trying to make the law work by attaching some sort of >reasonable interpretation on it that serves the interests of the >public and allows technology to function well. I wonder now if we >are deluding ourselves--is the law now an "epiphenonomenon," some >"superstructure" that has no real relation to real life and its >problems? I hope not, and I won't give up trying just yet, but >when one is humiliated in the attempt to apply reason to the law, >it doesn't encourage us much further. > Bloody damn. I think we should give Kaplan a course in natural harmonics to his "interpretive harmony". Any high school physics text has a relevant chapter. 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 Fri Aug 18 18:52:01 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA00423 for dvd-discuss-outgoing; Fri, 18 Aug 2000 18:52:01 -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 SAA00420 for ; Fri, 18 Aug 2000 18:52:00 -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 RAA15937 for ; Fri, 18 Aug 2000 17:51:58 -0500 (CDT) Message-ID: <399DBE57.EB689070@uic.edu> Date: Fri, 18 Aug 2000 17:53:11 -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] Hmm ... (was Why 1201 is bad public policy) Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Hmm ... I thought I cancelled that window, but apparently I posted it instead. Sorry for the wasted electrons. From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 18 18:53:30 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA00540 for dvd-discuss-outgoing; Fri, 18 Aug 2000 18:53:30 -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 SAA00537 for ; Fri, 18 Aug 2000 18:53:29 -0400 Received: by chiara.elte.hu (Postfix, from userid 17806) id 4BAB07E1B6; Sat, 19 Aug 2000 00:53:26 +0200 (CEST) Date: Sat, 19 Aug 2000 01:02:42 +0200 (CEST) From: Ingo Molnar To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] the Fair Use doctrine In-Reply-To: <200008181832.OAA23402@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, 18 Aug 2000, Robert S. Thau wrote: > Well, actually, he's inviting the "fair use community" to *construct a > proper test case*, in which the fair use doctrine applies immediately > and directly to the facts in evidence --- a library wanting to do a > media transfer, for example. [...] but dont we have the testimony from Professor Peter Ramadage? He is doing video compression and video indexing research, and on the record he says that: 16 Video that we digitize from analog tape I think I 17 said already there is a couple of problems with that. I won't 18 go over those again. 19 By far the best quality digital video that we can 20 obtain is from DVDs. [... ie. VHS is not good for his research ...] 23 Q. Have you used DeCSS? 24 A. Yes, I have. I have used it. [...] [... he would like to use DeCSS ...] 11 Q. What is the best? 12 A. The DVD. In terms of the breadth of video that's 13 available to us, the wide variety of video available to us 14 from various sources, and the high quality of the content, 15 DVDs are the best source for us. [... DVD is the best ...] so dont we have a case of fair use here? a different thread: Kaplan refuses to analyse fair use because Corley did not attempt fair use himself. But isnt that a legal error? Corley is accused of 'trafficing in an illegal device'. So it should be perfectly possible for the defense team to attempt to show that the device is not 'illegal', because it permits fair use to the general public (Corley not necesserily included). Just saying that Corley didnt attempt fair use is an irrelevant argument. Ingo From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 18 19:00:12 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA00603 for dvd-discuss-outgoing; Fri, 18 Aug 2000 19:00:12 -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 TAA00586 for ; Fri, 18 Aug 2000 19:00:01 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id TAA02556 for dvd-discuss@eon.law.harvard.edu; Fri, 18 Aug 2000 19:07:35 -0400 Date: Fri, 18 Aug 2000 19:07:29 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Statutory blunders, was: the Fair Use doctrine Message-ID: <20000818190729.B2397@eldritchpress.org> References: <20000818153607.3658.qmail@web509.mail.yahoo.com> <20000818121939.A1291@localhost> <20000818164128.B1777@eldritchpress.org> <200008182058.QAA02205@soggy-fibers.ai.mit.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <200008182058.QAA02205@soggy-fibers.ai.mit.edu>; from rst@ai.mit.edu on Fri, Aug 18, 2000 at 04:58:01PM -0400 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, Aug 18, 2000 at 04:58:01PM -0400, Robert S. Thau wrote: > Eric Eldred writes: > > It seems pretty plain that the MPAA is writing the specifications > > for the law to preserve their economic interests, and then buying > > the politicians and others to pass the laws with the "right" > > specifications that will be interpreted in the "right" way by > > judges and enforced in the "right" way by prosecutors and police. > > In the days of James Fisher & Co the publishers hired goon squads > > to break up and burn down their competitors. Nowadays they hire > > a flying squad of expensive lawyers and do it more smoothly. > > Ummm... that's what they're *trying* to do. The point of Paul's > message (well, one of them), is that they didn't entirely succeed in > Congress --- and that there are provisions in the law itself which > could easily lead appeals courts to take a different view of the > matter if the defense does a good job of calling them to the courts' > attention. I don't hold out any hope for Congress at this point (nor Nader either, for that matter). > The courts aren't the only arena in which this fight is being fought; > there's also Congress, the media and public opinion, and technical > developments; and each of these things to some extent influences the > others. This might be a good time to take a good honest look at where > we are, and how well we've been served in each of these areas. But I > think it's early *yet* to give up on the courts entirely. Yes, I too wrote the Librarian of Congress with my ideas about fair use under DMCA and my comments were posted. I agree it is a good idea to try to educate the public about copyright. But this has been going on for years now. Pam Samuelson wrote in Wired long ago about the infamous "White Paper" scheme to control and lock up all "intellectual property." The CTEA and DMCA are just parts of this scheme. And so far the courts have upheld this. Yes, I think we need to keep fighting in the courts. But we are on the defensive. What is happening is that the main show is going elsewhere. Instead of understanding our reasonable suggestions about how copyright law ought to accommodate new technology, the powers that control the media are forcing the issue into either of two paths--paths that are completely irrelevant to copyright law--either locking up content with strong encryption such as DMCA is intended to protect--or forcing consumers to practically universally ignore the stupid laws, in order for them to use their gadgets and use the content they buy. One of the worse things that Kaplan said was his characterization of 2600 and Linux users and computer "hackers" as advocates of all information being free. But he might be right that if his decision is upheld, we will all be forced into that position. And if so, it will be a tragedy for copyright law. From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 18 19:07:16 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA00668 for dvd-discuss-outgoing; Fri, 18 Aug 2000 19:07:16 -0400 Received: from zoom1.telepath.com (zoom1.telepath.com [216.14.10.10]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id TAA00665 for ; Fri, 18 Aug 2000 19:07:15 -0400 Received: from [216.14.0.70] (zoom0-070.telepath.com [216.14.0.70]) by zoom1.telepath.com (8.9.0/8.9.0) with ESMTP id SAA06055 for ; Fri, 18 Aug 2000 18:07:12 -0500 (CDT) Message-Id: <200008182307.SAA06055@zoom1.telepath.com> X-Mailer: Microsoft Outlook Express Macintosh Edition - 4.5 (0410) Date: Fri, 18 Aug 2000 18:06:10 -0500 Subject: [dvd-discuss] the long-awaited collision ? From: "Timothy Phillips" To: dvd-discuss@eon.law.harvard.edu Mime-version: 1.0 X-Priority: 3 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 TAA00666 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu The anti-trafficking provision of the DMCA cannot arise from the copyright power, since it secures to no ³author² an exclusive right ³in the writing². If it did, contravening it would constitute infringement. But as Judge Kaplan repeatedly emphasized, trafficking is a separate offense from infringement. The anti-trafficking provision must therefore arise under the commerce power. But as others have pointed out, the effect of this provision is to give the DVDCCA a de-facto monopoly in DVD players, outside the scope of the patent law; it is subject to no time limit or novelty standard. Could this be the long-awaited collision between the monopoly power and the commerce power ? Tim Phillips From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 18 19:11:41 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA00789 for dvd-discuss-outgoing; Fri, 18 Aug 2000 19:11:41 -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 TAA00785 for ; Fri, 18 Aug 2000 19:11:29 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id TAA02592 for dvd-discuss@eon.law.harvard.edu; Fri, 18 Aug 2000 19:19:03 -0400 Date: Fri, 18 Aug 2000 19:18:58 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] LiViD Message-ID: <20000818191858.C2397@eldritchpress.org> References: <20000818171220.D1777@eldritchpress.org> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: ; from sterno@bigbrother.net on Fri, Aug 18, 2000 at 04:12:17PM -0500 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, Aug 18, 2000 at 04:12:17PM -0500, Steve Stearns wrote: > On Fri, 18 Aug 2000, Eric Eldred wrote: > > > If importing is ruled illegal, then we might have a > > case against the U.S. for international restraint of > > free trade in violation of GATT. > > That seems like a risk proposition. You're leaving it up to an > international body to decide, which may agree with the U.S. right to do > so. The other potential problem here is that even if they tell the > U.S. you can't make it illegal it doesn't mean the U.S. has to > listen. The big problem with the international organizations is they > effectively have no teeth. > > ---Steve I'm not sure of the risk. I suggested using the importing technique to restrict the case to the fewest number of issues. If the case loses, it loses, no matter if importing was done or not, so I don't know what other implications might be drawn from that. But, asssuming that the case loses, then it puts the issues squarely before the public. Hollywood is controlling content and use. It's more than the U.S. constitution, it's a matter of world free trade. You may not be aware that a similar case is already before the EC commissions. The U.S. is appealing a decision by the EC that the U.S. Copyright Term Extension Act of 1998 is in violation of GATT, because it allows bar and restaurant owners to play music by Irish songwriters without compensation. If the appeal does not succeed, then the U.S. will either have to change the law or suffer sanctions in trade, similar to the sanctions the U.S. has imposed because Europeans won't accept GM food. It seems to me that Europeans have the right to be upset about this. After all, it was only the "sit-in" by two Parisian musicians, in a Paris cafe that played their music without compensation, that generated enough publicity to change the law and force royalties for music in France--and later in the U.S. If Hollywood is similarly able to restrict trade by means of CSS and region coding, then the Europeans and all other viewers should have the right to be upset about this law that unfairly recompenses Hollywood, but doesn't allow similar protection to movies made by Europeans (as would be the case, for example, if a European movie producer wanted to encrypt a film with CSS on DVD but allow users to use DeCSS). From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 18 19:15:26 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA00855 for dvd-discuss-outgoing; Fri, 18 Aug 2000 19:15:26 -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 TAA00842 for ; Fri, 18 Aug 2000 19:15:15 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id TAA02611 for dvd-discuss@eon.law.harvard.edu; Fri, 18 Aug 2000 19:22:49 -0400 Date: Fri, 18 Aug 2000 19:22:44 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] LiViD Message-ID: <20000818192244.D2397@eldritchpress.org> References: <20000818171220.D1777@eldritchpress.org> <200008182121.RAA08383@soggy-fibers.ai.mit.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <200008182121.RAA08383@soggy-fibers.ai.mit.edu>; from rst@ai.mit.edu on Fri, Aug 18, 2000 at 05:21:06PM -0400 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, Aug 18, 2000 at 05:21:06PM -0400, Robert S. Thau wrote: > Steve Stearns writes: > > On Fri, 18 Aug 2000, Eric Eldred wrote: > > > > > If importing is ruled illegal, then we might have a > > > case against the U.S. for international restraint of > > > free trade in violation of GATT. > > > > That seems like a risk proposition. You're leaving it up to an > > international body to decide, which may agree with the U.S. right to do > > so. The other potential problem here is that even if they tell the > > U.S. you can't make it illegal it doesn't mean the U.S. has to > > listen. The big problem with the international organizations is they > > effectively have no teeth. > > Note also that the most immediately relevant international > organization is likely WIPO, and the DMCA (or at least, the > anticircumvention provisions of it) was actually passed as the > enabling legislation for United States ratification of the WIPO > treaties. Yes, insofar as DMCA goes beyond WIPO, it might be in violation of GATT. But in fact there are very few nations that have passed WIPO. If the Seattle events are anything to go by, there are a great many nations that see treaties like WIPO as just more ways for rich countries to control trade. From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 18 19:15:51 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA00905 for dvd-discuss-outgoing; Fri, 18 Aug 2000 19:15:51 -0400 Received: from mailout1-100bt.midsouth.rr.com (mailout1-100bt.midsouth.rr.com [24.92.68.6]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id TAA00902 for ; Fri, 18 Aug 2000 19:15:49 -0400 Received: from babby1 (m16hCs2n154.midsouth.rr.com [24.95.122.154]) by mailout1-100bt.midsouth.rr.com (8.9.3+Sun/8.9.1) with SMTP id SAA10358 for ; Fri, 18 Aug 2000 18:15:14 -0500 (CDT) Message-ID: <011301c0096a$3d2fcca0$0a01a8c0@nanostuff.com> From: "Woney" To: Subject: [dvd-discuss] Class Action? Date: Fri, 18 Aug 2000 18:15:45 -0500 MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: 7bit X-Priority: 3 X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook Express 5.50.4133.2400 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 I've been lurking for some time now, preferring to stay silent and have people think of me as an idiot rather than speak and prove the rumor... that being said, I guess I'll go and prove it now. *grin* I was just wondering if a number of people could get together and file a class action suit against the MPAA, etc. for violating our fair use rights? Larry Johnson woney@wspice.com From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 18 19:22:44 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA01018 for dvd-discuss-outgoing; Fri, 18 Aug 2000 19:22:44 -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 TAA01015 for ; Fri, 18 Aug 2000 19:22:32 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id TAA02646 for dvd-discuss@eon.law.harvard.edu; Fri, 18 Aug 2000 19:30:06 -0400 Date: Fri, 18 Aug 2000 19:30:01 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] introduction Message-ID: <20000818193001.E2397@eldritchpress.org> References: <20000818210635.A28207@lemuria.org> <200008181935.PAA10100@soggy-fibers.ai.mit.edu> <20000818172255.F1777@eldritchpress.org> <20000818232133.B11418@inka.de> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <20000818232133.B11418@inka.de>; from mail@risctaker.inka.de on Fri, Aug 18, 2000 at 11:21:33PM +0200 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, Aug 18, 2000 at 11:21:33PM +0200, Sham Gardner wrote: > On Fri, Aug 18, 2000 at 05:22:56PM -0400, Eric Eldred wrote: > > Sorry, Robert. I didn't get a chance to explain the > > whole project. Yes, the disc would not be produced > > with no CSS scrambling--that would prove nothing. > > > > It would have to be CSS encrypted, and the disc would > > have to come with a license to use DeCSS to decrypt. > > And DeCSS would be on the disc and a floppy too. > > Do you intend to encyrpt the disc "officially" with a license from the > DVDCCA or by reversing the DeCSS algorithms? If it's the former, then you > should consider the possibility that the CSS license for content providers > may prohibit you from granting users the authority to use unlicensed > decyrption devices. I think this was indeed referred to in the testimony, but it was cut off by objections that this would introduce the sealed licenses. Can anybody confirm if the DVD-CCA license with DVD disc manufacturers requires them to encrypt and cut discs only for content providers that only agree to such terms? Since the DVD burners one can buy now apparently do not allow the burner to cut the key tracks, it does not seem possible to make a CSS encrypted DVD without going to a DVD disc manufacturer. So another question would be if any DVD disc manufacturer would cut discs if they were encrypted with the keys obtained by reverse engineering, instead of by showing a license from DVD-CCA. Again, this project would only succeed if it were possible to manufacture and sell CSS encrypted DVDs and issue them along with a license from the copyright owner that DeCSS (or LiViD or some other open source decryption and player) be used. But even if it were impossible practically, the attempt might be useful to show up how the authority model works in practice, and how Kaplan's interpretation of it is wrong. It would strengthen the case for antitrust violations. From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 18 19:29:01 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA01147 for dvd-discuss-outgoing; Fri, 18 Aug 2000 19:29:01 -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 TAA01139 for ; Fri, 18 Aug 2000 19:28:54 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id TAA02665 for dvd-discuss@eon.law.harvard.edu; Fri, 18 Aug 2000 19:36:27 -0400 Date: Fri, 18 Aug 2000 19:36:22 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] LiViD Message-ID: <20000818193622.F2397@eldritchpress.org> References: <20000818214054.6232.qmail@web514.mail.yahoo.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <20000818214054.6232.qmail@web514.mail.yahoo.com>; from bryan_w_taylor@yahoo.com on Fri, Aug 18, 2000 at 02:40:54PM -0700 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, Aug 18, 2000 at 02:40:54PM -0700, Bryan Taylor wrote: >... > I really do want to be able to watch DVD's on open source software. By > saying "OK this particular GPL'd tool CANNOT be used for piracy" are > argument gets MUCH stronger. > > Kaplan found enough clutter in the MPAA spin to avoid answering the > question framed the way the we wanted to frame it. We need to quit > being the victim and start attacking, on our terms, in forums of our choosing. Doing it this way might also raise the "limited commercial value" point. The disc could naturally be sold and covered by the GPL. Then it might be a point of economic competition between LiViD and DVD-CCA. And there are no patents or copyright involved in that. From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 18 19:56:25 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA01422 for dvd-discuss-outgoing; Fri, 18 Aug 2000 19:56:25 -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 TAA01419 for ; Fri, 18 Aug 2000 19:56:24 -0400 Received: from ip133.bedford9.ma.pub-ip.psi.net ([38.32.79.133]) by relay21.smtp.psi.net with smtp (Exim 3.13 #3) id 13Pvzo-0002vK-00 for dvd-discuss@eon.law.harvard.edu; Fri, 18 Aug 2000 19:56:21 -0400 From: Ron Gustavson To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] introduction Date: Fri, 18 Aug 2000 19:49:58 -0400 Message-ID: References: <20000818210635.A28207@lemuria.org> <200008181935.PAA10100@soggy-fibers.ai.mit.edu> <20000818172255.F1777@eldritchpress.org> <20000818232133.B11418@inka.de> <20000818193001.E2397@eldritchpress.org> In-Reply-To: <20000818193001.E2397@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 TAA01420 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, 18 Aug 2000 19:30:01 -0400, Eric Eldred wrote: >I think this was indeed referred to in the testimony, but >it was cut off by objections that this would introduce the >sealed licenses. > >Can anybody confirm if the DVD-CCA license with DVD disc >manufacturers requires them to encrypt and cut discs only >for content providers that only agree to such terms? The license on Cryptome doesn't. And it does state that it is the sole agreement between licensor and licensee. >Since the DVD burners one can buy now apparently do not >allow the burner to cut the key tracks, it does not seem >possible to make a CSS encrypted DVD without going to a >DVD disc manufacturer. So another question would be if >any DVD disc manufacturer would cut discs if they were >encrypted with the keys obtained by reverse engineering, >instead of by showing a license from DVD-CCA. My idea would be to only use a new key that would only exist for LiViD/DeCSS. This would need to be added. The resulting disc wouldn't play on existing players and wouldn't be CSS-compliant. >Again, this project would only succeed if it were possible >to manufacture and sell CSS encrypted DVDs and issue them >along with a license from the copyright owner that DeCSS >(or LiViD or some other open source decryption and player) >be used. Or just sell them with a notice that they require a certain player/software. Getting the needed software would be the buyer's problem. >But even if it were impossible practically, the attempt >might be useful to show up how the authority model works >in practice, and how Kaplan's interpretation of it is >wrong. It would strengthen the case for antitrust violations. The glitch seems to be here. from procedures_b.pdf... | DVD CCA will: | 1. Verify receipt of payment. | 2. Send Content Side Guide Book, a CD-R with CSS Key Input program, CSS Certificate and | Receipt of Items Form. | | Step 3: | 1. Licensee signs and returns the Receipt of Items form. | 2. Client runs CSS Key Program and sends the resultant floppy disks to DVD CCA | | DVD CCA will: | 1. Verify receipt and files the Receipt of Items form. | 2. Complete the key generation process and return the resultant floppy disks. | 3. Send a Receipt of Items form. Running the CSS key program must render the machinery unusable until the generated floppies are returned(?) I don't think we'll find any legitimate DVD replicators that are willing to change their CSS keys even temporarily. Now, if you could get a Hong Kong pirate to press the discs... Let's face it, DVD as a whole smells bad. And don't think it's just for movies. Already one dental school has put their entire four-year curriculum on DVD. As more publishers see the value of multimedia publishing, it will become one all-inclusive option for archival media. Then comes HDCP... __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 18 20:25:01 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA02139 for dvd-discuss-outgoing; Fri, 18 Aug 2000 20:25:01 -0400 Received: from prserv.net (out2.prserv.net [32.97.166.32]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id UAA02128 for ; Fri, 18 Aug 2000 20:24:59 -0400 Received: from patris.bel-kwinith.org ([32.100.202.72]) by prserv.net (out2) with SMTP id <2000081900240222900hr4eke>; Sat, 19 Aug 2000 00:24:02 +0000 MIME-Version: 1.0 Content-Type: text/plain; charset=iso-8859-1 Date: Fri, 18 Aug 2000 20:24:00 -0400 (EDT) From: rst@alum.mit.edu To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] the long-awaited collision ? In-Reply-To: <200008182307.SAA06055@zoom1.telepath.com> References: <200008182307.SAA06055@zoom1.telepath.com> X-Mailer: VM 6.43 under 20.4 "Emerald" XEmacs Lucid Message-ID: <14749.53569.503359.918367@patris.bel-kwinith.org> Content-Transfer-Encoding: 8bit X-MIME-Autoconverted: from quoted-printable to 8bit by eon.law.harvard.edu id UAA02129 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Timothy Phillips writes: > The anti-trafficking provision of the DMCA cannot arise from the > copyright power, since it secures to no ³author² an exclusive right > ³in the writing². If it did, contravening it would constitute > infringement. But as Judge Kaplan repeatedly emphasized, > trafficking is a separate offense from infringement. The > anti-trafficking provision must therefore arise under the commerce > power. But as others have pointed out, the effect of this > provision is to give the DVDCCA a de-facto monopoly in DVD players, > outside the scope of the patent law; it is subject to no time limit > or novelty standard. > > Could this be the long-awaited collision between the monopoly power > and the commerce power ? FYI, this is one of the arguments in the authority paper, a version of which got submitted as a comment to the library of congress regarding their section 1201 rulemaking. (The paper also has a nice riff on the theme, by Bryan Taylor, based on the notion of "abuse of copyright" that Boies is trying to invoke in the Napster case). The original authority draft is at http://www.ai.mit.edu/people/rst/dmca/auth/auth.html and the LOC variant at http://www.ai.mit.edu/people/rst/dmca/loc-copy/loc-copy.html but both will be unavailable tomorrow due to a power shutdown in the building containing the web server. The LOC variant is also available in PDF --- look for the comment by Robert Thau and Bryan Taylor at http://www.loc.gov/copyright/reports/studies/dmca/comments/ Bryan did his own separate comment which is also worth reading, as did others from this forum (John Zulauf is very good at explaining what's at stake here). rst From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 18 20:26:03 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA02177 for dvd-discuss-outgoing; Fri, 18 Aug 2000 20:26:03 -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 UAA02171 for ; Fri, 18 Aug 2000 20:26:02 -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 TAA20307 for ; Fri, 18 Aug 2000 19:26:00 -0500 (CDT) Message-ID: <399DD463.6177EDC0@uic.edu> Date: Fri, 18 Aug 2000 19:27:15 -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] Introduction Content-Type: text/plain; charset=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 about this: 1. Create some DVDs that are encrypted using the CSS algorithm, but require completely different player keys, a different key for each disc. This way, these discs won't play back on a standard DVD player. 2. Sell some copies of that DVD to interested parties such as ourselves, at the cost of production. In essence, give them away at cost. 3. Now, offer to sell copies of the player key for each disc for $1.00. This is completely within the spirit of the DMCA. (whatever that may be.) You are making the encrypted data generally available, and selling access to the data by selling copies of the player key. This is what the DMCA was supposed to provide the legal framework for -- selling the decryption key instead of selling the larger data file. Now, of course, you have to distribute a player that can play back these specially encrypted DVDs. This player will include no player keys, and consequently will be unable to play back MPAA originated DVDs. Hence, the MPAA would have no legal standing to attack the player authors, because the player does not decode any works copyrighted by the MPAA. Since each of our discs has its own player key, this player will require a "preferences" entry where you can type in the player key for the disc you want to play. Of course, if an end user were interested in playing back MPAA originated DVDs, on this player, they would need to obtain permission from the DVD-CCA in order to type in one of the CCA-generated player keys, but, but we aren't interested in that. We are merely interested in using the industry-standard CSS encryption system to distribute our own copyrighted works in a secure format. Exactly what the DMCA is there for. From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 18 20:29:27 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA02310 for dvd-discuss-outgoing; Fri, 18 Aug 2000 20:29:27 -0400 Received: from prserv.net (out5.prserv.net [32.97.166.35]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id UAA02307 for ; Fri, 18 Aug 2000 20:29:26 -0400 Received: from patris.bel-kwinith.org ([32.100.202.72]) by prserv.net (out5) with SMTP id <20000819002558205027q4k3e>; Sat, 19 Aug 2000 00:25:59 +0000 From: "Robert S. Thau" MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Date: Fri, 18 Aug 2000 20:28:28 -0400 (EDT) To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] california jurisdiction question In-Reply-To: <20000818232358.A10977@lemuria.org> References: <20000818232358.A10977@lemuria.org> X-Mailer: VM 6.43 under 20.4 "Emerald" XEmacs Lucid Message-ID: <14749.54336.803685.139839@patris.bel-kwinith.org> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Tom Vogt writes: > obviously, the whole case is ridiculous as far as it concerns me. what's > next? a peking court suing me because my webpage doesn't contain a chinese > translation? No, no, no. The Chinese don't do that sort of thing. You have them confused with the French. rst (PS: Yes, I am referring to an actual lawsuit...) From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 18 20:36:50 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA02370 for dvd-discuss-outgoing; Fri, 18 Aug 2000 20:36:50 -0400 Received: from mail.lemuria.org (lemuria.borgfelde.ricardo.de [195.244.103.65]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id UAA02367 for ; Fri, 18 Aug 2000 20:36:46 -0400 Received: from lemuria.org by mail.lemuria.org via rsmtp with bsmtp id for ; Sat, 19 Aug 2000 02:34:01 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Received: by lemuria.org via sendmail with stdio id for dvd-discuss@eon.law.harvard.edu; Sat, 19 Aug 2000 02:07:04 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Date: Sat, 19 Aug 2000 02:07:04 +0200 From: Tom Vogt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] introduction Message-ID: <20000819020704.A12126@lemuria.org> References: Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0pre3i In-Reply-To: X-Privacy: If you can, please encrypt your mails - finger for key Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu "Harold Eaton" wrote: > >Would it be legal for a publisher to encode a DVD with CSS > >without being a part of the consortium? > > I'm not sure about this in the United States. The only obstacle > I can see is the CSS patents. I'll have to read them again to > see what I think. In all likelihood the patents won't be a road > block, but expect to get sued anyway. actually, DVD CCA believes it IS illegal to encode with CSS unless you have a CSS license. see their initial tro filing in california, available on my website: http://www.lemuria.org/DeCSS/tro.html - I think it's early in the 2nd chapter. -- "The net treats censorship as a malfunction and re-routes around it." (John Gilmore) From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 18 20:37:34 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA02382 for dvd-discuss-outgoing; Fri, 18 Aug 2000 20:37:34 -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 UAA02379 for ; Fri, 18 Aug 2000 20:37:32 -0400 Message-ID: <20000819003700.10372.qmail@web510.mail.yahoo.com> Received: from [64.81.25.36] by web510.mail.yahoo.com; Fri, 18 Aug 2000 17:37:00 PDT Date: Fri, 18 Aug 2000 17:37:00 -0700 (PDT) From: Bryan Taylor Subject: [dvd-discuss] ZDNet calls decision "Shocking" To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-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.zdnet.com/eweek/stories/general/0,11011,2616841,00.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 Aug 18 20:38:22 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA02469 for dvd-discuss-outgoing; Fri, 18 Aug 2000 20:38:22 -0400 Received: from mail.lemuria.org (lemuria.borgfelde.ricardo.de [195.244.103.65]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id UAA02466 for ; Fri, 18 Aug 2000 20:38:19 -0400 Received: from lemuria.org by mail.lemuria.org via rsmtp with bsmtp id for ; Sat, 19 Aug 2000 02:34:01 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Received: by lemuria.org via sendmail with stdio id for dvd-discuss@eon.law.harvard.edu; Sat, 19 Aug 2000 02:31:46 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Date: Sat, 19 Aug 2000 02:31:46 +0200 From: Tom Vogt To: dvd-discuss@eon.law.harvard.edu, decss@lists.lemuria.org Subject: [dvd-discuss] code as speech Message-ID: <20000819023146.F12126@lemuria.org> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0pre3i X-Privacy: If you can, please encrypt your mails - finger for key Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I've been working on one other thing the past 2 hours, and I'd like to give these two lists a sneak preview, and harvest comments before publishing it. first, an example: network protocoll. not make much sense, but IS an english text, with (mostly) correct grammar but these companies are not provided with the proprietary CSS information at issue. licensees implementing authentication and descrambling functions in the software are required to do so only in a manner that obscures the proprietary CSS technology at issue, licensees are subject to a very stringent set of rules to ensure the maintenance of confidentiality within the group of licensees. Both forms of distribution are such that the proprietary technology cannot be viewed by non-licensees. The proprietary technology is not accessible to unlicensed third parties because it is either incorporated in hardware devices -- chips -- or made tamper resistant if distributed in the form of actual software. Both forms of distribution are such that the proprietary technology cannot be viewed by non-licensees. Each licensee is assigned a set of 'master keys' unique to each licensee. DVD CCA is informed and believes, The CSS Agreement mandates that licensees provide the proprietary CSS technology at issue only to the strictest minimum number of licensee's employees who require access to the information, The CSS Agreement requires licensees to maintain the confidentiality of certain defined pieces of information, [...] and so on, for roughly 500 lines. this looks a lot like a cut-and-mixed version of the DVD CCA's very own TRO paper, and that's indeed what it is. a remix? a piece of word-art? well, maybe. it's been created by the following short php script: $file = file("wordlist"); $input = fopen("php://stdin","r"); while (!feof($input)) { $char=fgetc($input); echo $file[ord($char)]; } this reads in any file (text or binary) from stdin and converts it into a textfile. there is a 1:1 relation between bytes in the original file and lines in the output file. if you know the textfile, you can reverse the process and get the inputfile back. the inputfile for the above snippet was decss.h in other words: I have found a way to express decss in terms of the DVD CCA's own legal papers. it gets more interesting: I believe I do have an access control system here. while you can read the garbage, it won't make much sense. it's an encryption, much like CSS (I can read the DVD, but without DeCSS, it's just garbage). (the similiarities do not end there - both are very crappy encryption systems. :) ) obviously, the script itself is way too simple to be the access control. everyone with half a brain can write a better one in any of a dozen programming languages. the textfile used ("wordlist") is required to access the original content, and is not easily reverse-engineered. is distribution of the input textfile without my consent "trafficking in circumvention tools" as described by the DMCA ? if so, what if I choose to use the constitution as my input textfile? and of course: will the DVD CCA sue minced-up versions of it's very own legal documents? I'm sure I've not yet discovered all the interesting points of this. the full package - including an already "encrypted" copy of DeCSS plus - will be available on my website tomorrow. in the meantime, I'd like to invite comments on the idea. -- "The net treats censorship as a malfunction and re-routes around it." (John Gilmore) From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 18 20:46:46 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA02549 for dvd-discuss-outgoing; Fri, 18 Aug 2000 20:46:46 -0400 Received: from mail.lemuria.org (lemuria.borgfelde.ricardo.de [195.244.103.65]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id UAA02546 for ; Fri, 18 Aug 2000 20:46:45 -0400 Received: from lemuria.org by mail.lemuria.org via rsmtp with bsmtp id for ; Sat, 19 Aug 2000 02:40:11 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Received: by lemuria.org via sendmail with stdio id for dvd-discuss@eon.law.harvard.edu; Sat, 19 Aug 2000 02:36:50 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Date: Sat, 19 Aug 2000 02:36:50 +0200 From: Tom Vogt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] california jurisdiction question Message-ID: <20000819023650.A12259@lemuria.org> References: <20000818232358.A10977@lemuria.org> <14749.54336.803685.139839@patris.bel-kwinith.org> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0pre3i In-Reply-To: <14749.54336.803685.139839@patris.bel-kwinith.org> X-Privacy: If you can, please encrypt your mails - finger for key Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu "Robert S. Thau" wrote: > No, no, no. The Chinese don't do that sort of thing. You have them > confused with the French. france is too close to make the point. :) -- "The net treats censorship as a malfunction and re-routes around it." (John Gilmore) From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 18 21:16:14 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA02955 for dvd-discuss-outgoing; Fri, 18 Aug 2000 21:16:14 -0400 Received: from prserv.net (out5.prserv.net [32.97.166.35]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id VAA02952 for ; Fri, 18 Aug 2000 21:16:13 -0400 Received: from patris.bel-kwinith.org ([129.37.108.25]) by prserv.net (out5) with SMTP id <200008190112432050292gj2e>; Sat, 19 Aug 2000 01:12:44 +0000 MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Date: Fri, 18 Aug 2000 21:15:10 -0400 (EDT) From: rst@alum.mit.edu To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] introduction In-Reply-To: <20000818172255.F1777@eldritchpress.org> References: <20000818210635.A28207@lemuria.org> <200008181935.PAA10100@soggy-fibers.ai.mit.edu> <20000818172255.F1777@eldritchpress.org> X-Mailer: VM 6.43 under 20.4 "Emerald" XEmacs Lucid Message-ID: <14749.54628.362104.41193@patris.bel-kwinith.org> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Eric Eldred writes: > It would have to be CSS encrypted, and the disc would > have to come with a license to use DeCSS to decrypt. > And DeCSS would be on the disc and a floppy too. > > Then the question would be if Kaplan's ruling would > prevent "trafficking" in technology that *is* used > with the authorization of the copyright holder. > It would bring into sharp focus just what authority > model is being used by DVD-CCA. Well, then, I presume that the stuff on the disk would not be source code, but something audiovisual, maybe a tape of Stallman in his "Saint iGNUcious" get-up, so that a stock DVD player would in fact be able to play it in some reasonable manner. IANAL, but when I'm thinking about these sorts of possible test cases, I ask myself a few questions which seem to be the same that Kaplan was at least invoking: Q1) What legitimate purpose are the complainants trying to achieve? Q2) What alternatives do they have within the letter of the law being challenged? Q3) How much do the alternatives available under the law truly harm their ability to achieve their legitimate purpose? Q4) How much are the complainants' interests and rights actually harmed? Bear in mind also that the courts don't much like to consider cases which exist only to explore some weird corner case in the law, unless it can be shown that the case is one which arises in ordinary life, and not as some kind of deliberate contrivance. So "challenging the law" isn't a useful answer to Q1; you need answer to the question which would make sense even if the law had never been passed in the first place. So, let's apply these questions to your demonstration. Q1) What legitimate purpose are you trying to achieve? A1) Well, if the answer isn't "challenge the law", it has to be something else related to production of this disk. Since you're claiming, I guess, that Sony is violating your access control regime by distributing players which will render it, the answer would have to be something like "protect our images of Saint iGNUcious from unauthorized use". Q2) What alternatives do they have under the law? A2) This is the rub --- there's absolutely no reason you have to use CSS to protect your disk unless you actually *want* it to play in Sony players. Any other protection scheme would do --- even CSS itself with a different set of player keys. Q3) How much do the alternatives available under the law truly harm their ability to achieve their legitimate purpose? A3) Not at all. It works. No sweat. Q4) How much are the complainants' interests and rights actually harmed? A4) Well, they aren't, not that I can see. Let's contrast that with answers to the same questions for, say, the LiVid developers. Q1) What legitimate purpose are the complainants trying to achieve? A1) They are trying to build a player that will render region 1 DVDs when they are located in region 2, and without subjecting themselves to million dollar fines from the movie studios' agent, and the potential imposition of further conditions down the line. Q2) What alternatives do they have within the letter of the law being challenged? A2) They can apply to the DVDCCA for a license. It doesn't cost a *whole* lot of money, but it does require the agreement to conditions which, as indicated above, they find noxious. Furthermore, there is the prospect of even more conditions in the future, at the whim of the copyright holders, which are not under their control. (Large electronics manufacturers may have some negotiating leverage; they have none). Q3) How much do the alternatives available under the law truly harm their ability to achieve their legitimate purpose? A3) Without the license, under the MPAA's interpretation of the law, they can't do it. If the license is unacceptable, they're out of luck. Q4) How much are the complainants' interests and rights actually harmed? A4) That depends on the acceptability of the license, which is already unacceptable to some (particularly Johansen), and could get worse at the whim of the movie studios. Furthermore, the reason that the plaintiffs are being harmed is precisely because the MPAA is claiming authority to regulate the manufacture of devices, which attacks authority models directly. So, it seems to me that LiVid itself provides a better test case than your demo, and the facts are readily at hand. Unfortunately, Universal v. Corley isn't quite the LiVid case, for a couple of reasons. First, Corley himself is, by admission, not a LiVid developer (or even a programmer). He's a bystander who was writing an article about LiVid, DeCSS, and its possible uses --- which might well include use for illegitimate copying. (I know this isn't the primary purpose, but it's a fact, and trying to run from those is a mistake). More seriously, Kaplan ruled that he didn't believe that DeCSS was primarily written as a player component. That's a finding of fact, which I believe will be difficult to revisit at the appelate level, which means that we may be stuck with it unless Universal v. Corley gets bounced back down to a court other than Kaplan's, and I wouldn't want to be the whole case on that possibility. (IANAL, and I'd love for a lawyer to correct me on this, but this is how I understand matters stand). But, he did at least allow that it was a possible purpose. Which means that we still can argue that it is a legitimate purpose, and that the law is overbroad if it forbids it. (Note one twist in the above argument: I didn't say "open source DVD player". That's deliberate. The only thing open-source adds to the argument is another reason to dislike the license --- that the complainants are unable to sign an NDA. But NDA's are ubiquitous in technology industries, enough so that the courts are unlikely to recognize their imposition as a hardship. That's different from what I personally think of course --- I do think that desiring to avoid NDA's is legitimate, and I would very much like it if the courts though the same way. But they don't; they are far more likely to recognize region coding and million dollar fines as disincentives to signing onto the DVDCCA licensing regime. If we try to argue the NDA thing, then we have to demonstrate to the court that avoiding NDA's is a legitimate purpose before we even argue the actual case --- and we have problems enough in arguing this case without giving ourselves more). rst From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 18 21:42:57 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA03610 for dvd-discuss-outgoing; Fri, 18 Aug 2000 21:42:57 -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 VAA03607 for ; Fri, 18 Aug 2000 21:42:56 -0400 Received: from mediaone.net (h0060b03c5b8b.ne.mediaone.net [24.128.18.77]) by chmls05.mediaone.net (8.8.7/8.8.7) with ESMTP id VAA21668 for ; Fri, 18 Aug 2000 21:42:53 -0400 (EDT) Message-ID: <399DE61D.1205A6E3@mediaone.net> Date: Fri, 18 Aug 2000 21:42:53 -0400 From: Sphere X-Mailer: Mozilla 4.73 [en] (WinNT; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] LiViD References: <20000818170312.10282.qmail@web513.mail.yahoo.com> <20000818154347.A19078@thud.reric.net> Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Eric Seppanen wrote: > > On Fri, Aug 18, 2000 at 10:03:12AM -0700, Bryan Taylor wrote: > > Matt, > > > > It is clear that LiViD may be in danger because of this bad precedent. > > > > I suggest (... snip) > > > 1. Get the EFF to back you > > 2. Write a letter to the MPAA and DVD-CCA stating that > > A) The LiViD developers have lawfully reverse engineered CSS > > B) You intend to distribute your work under the GPL > > C) You will do so by posting it on a web server in Dallas TX under > > the jurisdiction of the 5th Circuit > > D) Ask them to stipulate or aquiece through silence that LiViD > > qualifies for the DMCA 1201(f) test > > E) State clearly that LiViD does not allow storage of the > > decrypted media on the hard drive > > But using css-cat _does_ allow storing of the decrypted data, anywhere the > user wants. Are you recommending that this functionality be removed? > Maybe it should only dump 30 seconds at a time? But how are you going to > prevent people from fiddling the source code to re-enable the features > that scare the MPAA? Perhaps the source code should be hidden! And you > better change the license so nobody reverse-engineers the dangerous parts! > (ditto region codes, ditto player keys... :) > > In short, there is no feature set that it going to be agreed upon between > free-software developers and MPAA/DVDCCA, so I think pretending that > developers are going to kindly cripple their software and their methods to > please the MPAA is a mistake. > > So 2.E should be stricken from the list. I don't necessarily endorse the > rest of the list but that's the only item I really don't think flies. Hey! Wait-a-second! Maybe we can encourage more people to learn how to program this way. > > F) State that your group has created LiViD solely for the purpose > > of interoperability of DVD's with "open source software" > > 3. They will respond with some form of cease and desist letter > > 4. File suit in the 5th Circuit for a declaratory judgement > > > > Maybe just skip steps 2-3. > > > > --- "Matthew R. Pavlovich" wrote: > > > I am quite disappointed in his opinion regarding the two CSS licensed > > > companies that plan to release a player for Linux. The real > > > number is 3, and none of them have released products. My > > > understanding is that part of the re clause in > > > the DMCA is that when there is not a commercial alternative > > > available, it is valid to reverse engineer for interoperability. > > > > > > In a sense, Kaplan is buying into the vaporware, and supporting the > > > DVD-CCA's hold on license control. > > -- Sphere. No permanence. No self. No perfection. From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 18 21:53:22 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA03765 for dvd-discuss-outgoing; Fri, 18 Aug 2000 21:53:22 -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 VAA03762 for ; Fri, 18 Aug 2000 21:53:21 -0400 Received: from mediaone.net (h0060b03c5b8b.ne.mediaone.net [24.128.18.77]) by chmls05.mediaone.net (8.8.7/8.8.7) with ESMTP id VAA25516 for ; Fri, 18 Aug 2000 21:53:17 -0400 (EDT) Message-ID: <399DE88C.2E98729C@mediaone.net> Date: Fri, 18 Aug 2000 21:53:16 -0400 From: Sphere X-Mailer: Mozilla 4.73 [en] (WinNT; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] introduction References: <20000818170422.C1777@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 Fri, Aug 18, 2000 at 03:39:22PM -0400, Harold Eaton wrote: > > Tom Vogt wrote: > > > > >my name's above. I'm one of the 23 named defendants in the california > > >case, and I'm also the only one of them who still has his site online > > >(I just recently added DeCSS Plus to it). > > > > > > > > >I joined this list by invitation from eric eldred. I contacted him > > >about his /. posting. in short, my idea (based on his posting) is to > > >create a DVD that - according to kaplan's ruling - can not be legally > > >accessed even though it contains only perfectly legal content and even > > >though the creator/copyright holder gives his explicit consent. > > > > Um, I'm not sure I understand the purpose of this. I think it would > > be better to make a DVD to which you as copyright owner don't > > authorize to be used with anything *other* than DeCSS, so that > > CSS becomes the circumventor. Regardless, can you please expand > > upon what it is you want to do exactly? > > Yes, it was my idea (more or less) and Tom picked up on > my offer to help implement it. > > My suggestion on Slashdot (and also earlier here) was for the > Free Software Foundation (or some other group) to produce a > DVD full of Free Software--copyrighted, but under the GPL or > BSD or another license that allows copying under certain > circumstances. The disc would also include DeCSS, at least > in source form. > > As you also suggest, the license should be plain. The disc > would be CSS-encrypted. I'm not up on the technical details of > this (Jim Taylor, are you still reading this?). Either the > reverse engineering of DeCSS could be used to generate the > VOB files--or the group could simply pay $9,200 to get a > membership in DVD-CCA. But, critically, as you suggest, the > license that is actually provided on the disc (and with an > accompanying floppy disc containing DeCSS and player software) > should specify that *only DeCSS* is to be used to decrypt the > files and copy them to the user's hard disk. This authorization > would be specifically from the copyright holders. > > True, there might be some difficulties in getting a DVD > disc manufacturer to accept the job of making the discs. > If so, they might open themselves to some lawsuits about > restraint of trade. It would also reveal the exact > content of licenses and the authority model. > > If, technically, it is not feasible to generate a DVD of > software, then some video could be generated in its place, > again covered by some open source license, and along with > a license that requires DeCSS as the decryption tool. > > There might be a suit by DVD-CCA under trade secret law. > Then it would be necessary to prove that DeCSS or whatever > means of encryption were used were derived from clean room > reverse engineering and not a theft of trade secrets. > > This project avoids the impression that the Free Software > advocates are a bunch of pirates who only steal content > from the professional movie studios, musicians, and > Microsoft. The content would be viewed and used only with > the authorization of the copyright holder, under 1201--and > the user is specified to use *only* DeCSS to decrypt. > > Please separate the legal questions on this matter from > the technical and financial ones, if possible. If you > want me to take this offline, I'll do so. But it might be > a way for us to introduce our ideas into a case that does > test the "overbreadth" argument that Kaplan hasn't been > willing to deal with so far. The MPAA has chosen their > first targets in 2600. We ought to choose our own strategy > and counterattack. Only this way can we make the law clear. Wouldn't it be sufficient for him to merely make up one copy of this disk and send it to someone with the appropriate accomanying text? (He might want to sell it for a dollar...) He shouldn't provide DeCSS, but rather leave that problem up to the customer. The customer now has the problem of legally playing the disk. -- Sphere. No permanence. No self. No perfection. From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 18 22:03:39 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA04594 for dvd-discuss-outgoing; Fri, 18 Aug 2000 22:03:39 -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 WAA04591 for ; Fri, 18 Aug 2000 22:03:38 -0400 Received: from mediaone.net (h0060b03c5b8b.ne.mediaone.net [24.128.18.77]) by chmls05.mediaone.net (8.8.7/8.8.7) with ESMTP id WAA29377 for ; Fri, 18 Aug 2000 22:03:32 -0400 (EDT) Message-ID: <399DEAEC.24008B86@mediaone.net> Date: Fri, 18 Aug 2000 22:03:24 -0400 From: Sphere X-Mailer: Mozilla 4.73 [en] (WinNT; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Re: your mail References: <20000818171120.A1272@agape.murphy.cx> Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Roy Murphy wrote: > > Yea, verily on Fri, Aug 18, 2000 at 12:08:55PM -0500, > thus spake tim: > > Can someone tell us non-lawyerly geeks what happens next? If the court of > > appeals sees something wrong with Kaplan's ruling or the trial itself, > > they just send the case back to Kaplan, don't they? > > That depends on the ruling. If the ruling is that the DCMA is > unconstitutional (unlikely, though possible), there's no case to go back. > If the ruling is that the correct legal test was not applied (i.e. Kaplan > must apply a certain analysis of the authority model or explicitly > consider fair uses as a significant, non-circumventing use) then it goes > back to him to apply the new test. If Kaplan improperly disallowed the > admission of certain evidence, a new trial may be necessary. If the decision is that Kaplan should have reclused himself then things start all over again with a different judge. > -- > Roy Murphy \ CSpice -- A mailing list for Clergy Spouses > murphy@panix.com \ http://www.panix.com/~murphy/CSpice.html -- Sphere. No permanence. No self. No perfection. From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 18 22:06:46 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA04827 for dvd-discuss-outgoing; Fri, 18 Aug 2000 22:06:46 -0400 Received: from mail.lemuria.org (lemuria.borgfelde.ricardo.de [195.244.103.65]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id WAA04824 for ; Fri, 18 Aug 2000 22:06:45 -0400 Received: from lemuria.org by mail.lemuria.org via rsmtp with bsmtp id for ; Sat, 19 Aug 2000 03:57:31 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Received: by lemuria.org via sendmail with stdio id for dvd-discuss@eon.law.harvard.edu; Sat, 19 Aug 2000 02:59:16 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Date: Sat, 19 Aug 2000 02:59:16 +0200 From: Tom Vogt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Introduction Message-ID: <20000819025916.A12373@lemuria.org> References: <399DD463.6177EDC0@uic.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0pre3i In-Reply-To: <399DD463.6177EDC0@uic.edu> X-Privacy: If you can, please encrypt your mails - finger for key Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu John Schulien wrote: > 1. Create some DVDs that are encrypted using the > CSS algorithm, but require completely different player > keys, a different key for each disc. This way, these > discs won't play back on a standard DVD player. if DVD CCA is right that you require a CSS license to ENCODE content, they were probably smart enough to make sure the license limits your possibilities of (ab)using it as a leverage against itself. most specifically, it'll probably require that you only use those 'master keys' DVD CCA has assigned you. -- "The net treats censorship as a malfunction and re-routes around it." (John Gilmore) From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 18 22:07:35 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA04854 for dvd-discuss-outgoing; Fri, 18 Aug 2000 22:07:35 -0400 Received: from hotmail.com (f91.law9.hotmail.com [64.4.9.91]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id WAA04845 for ; Fri, 18 Aug 2000 22:07:34 -0400 Received: from mail pickup service by hotmail.com with Microsoft SMTPSVC; Fri, 18 Aug 2000 19:07:02 -0700 Received: from 38.30.243.186 by lw9fd.law9.hotmail.msn.com with HTTP; Sat, 19 Aug 2000 GMT X-Originating-IP: [38.30.243.186] From: "Harold Eaton" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] introduction Date: Fri, 18 Aug 2000 22:07:02 EDT Mime-Version: 1.0 Content-Type: text/plain; format=flowed Message-ID: X-OriginalArrivalTime: 19 Aug 2000 02:07:02.0673 (UTC) FILETIME=[2A511810:01C00982] Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu rst wrote: >So, let's apply these questions to your demonstration. > > Q1) What legitimate purpose are you trying to achieve? > > A1) Well, if the answer isn't "challenge the law", it has to be > something else related to production of this disk. Since you're > claiming, I guess, that Sony is violating your access control > regime by distributing players which will render it, the answer > would have to be something like "protect our images of Saint > iGNUcious from unauthorized use". > > Q2) What alternatives do they have under the law? > > A2) This is the rub --- there's absolutely no reason you have to use > CSS to protect your disk unless you actually *want* it to play in > Sony players. Any other protection scheme would do --- even CSS > itself with a different set of player keys. > > Q3) How much do the alternatives available under the law truly harm > their ability to achieve their legitimate purpose? > > A3) Not at all. It works. No sweat. > > Q4) How much are the complainants' interests and rights actually > harmed? > > A4) Well, they aren't, not that I can see. I think there is a far better plan available, but it probably involves being a defendant rather than plaintiff (but then so does the LiVid challenge I think). We should make some films (I can think of a few nice documentaries) and sell them on DVD with CSS encryption, but not under a DVD CCA license. What is the purpose? Well, to sell movies, with access control to prevent their being directly copied with a DVD Ram for example. We want to prevent such copying because it will eat into sales of the disc. Why use CSS instead of some other scheme? The installed base of DVD players is quite large. It would be virtually impossible to require people to buy yet another new player technology from a small independent film maker. The only reasonable option is to target existing DVD players. That's not to say we couldn't offer a better player, just that it would be crazy to require it. Why not get a DVD CCA license instead of reverse-engineer the encoding for interoperability? Well, we think the terms of the DVD CCA license are unacceptable; we don't wish to deny customers of our films fair use access. We wouldn't use region coding or macrovision. We would offer at no cost a software player that would allow for (partial?) copying once the user clicks on an acknowledgement that it will be used soley for fair use, for example. This is a very good test case IMHO. Can a small film maker publish in DVD format, utilize access control to protect their financial interest, and also do the right thing (tm) and give their customers fair use? Outside of patent considerations, I don't see how the law could prevent it. ________________________________________________________________________ Get Your Private, Free E-mail from MSN Hotmail at http://www.hotmail.com From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 18 22:22:00 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA05127 for dvd-discuss-outgoing; Fri, 18 Aug 2000 22:22:00 -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 WAA05124 for ; Fri, 18 Aug 2000 22:21:59 -0400 Received: from mediaone.net (h0060b03c5b8b.ne.mediaone.net [24.128.18.77]) by chmls06.mediaone.net (8.8.7/8.8.7) with ESMTP id WAA14588 for ; Fri, 18 Aug 2000 22:21:52 -0400 (EDT) Message-ID: <399DEF3E.BA6BAC03@mediaone.net> Date: Fri, 18 Aug 2000 22:21:50 -0400 From: Sphere X-Mailer: Mozilla 4.73 [en] (WinNT; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Statutory blunders, was: the Fair Use doctrine References: <20000818220824.29497.qmail@web513.mail.yahoo.com> Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Bryan Taylor wrote: > > --- "Robert S. Thau" wrote: > > The courts aren't the only arena in which this fight is being fought; > > there's also Congress, the media and public opinion, and technical > > developments; and each of these things to some extent influences the > > others. This might be a good time to take a good honest look at > > where we are, and how well we've been served in each of these > > areas. But I think it's early *yet* to give up on the > > courts entirely. > > Well said. Look, one judge didn't view it our way. It's way, WAY, to > early to give up on the courts. Next we'll have a panel of three 2nd > Circuit judges who will take a much more scholarly approach to the > case. > > The MPAA was clearly fortunate to draw Kaplan. Nobody here thought we > were playing round one on a level field. It'll be really nice to see > this play out in a calmer, more scholarly, neutral setting. Speaking of which... What do we know about the players so far? It's three out of (?) 9?, right? Do we know anything about how they tend to lean? -- Sphere. No permanence. No self. No perfection. From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 18 22:31:18 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA05289 for dvd-discuss-outgoing; Fri, 18 Aug 2000 22:31:18 -0400 Received: from prserv.net (out5.prserv.net [32.97.166.35]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id WAA05286 for ; Fri, 18 Aug 2000 22:31:17 -0400 Received: from patris.bel-kwinith.org ([129.37.108.25]) by prserv.net (out5) with SMTP id <200008190227492050292gr8e>; Sat, 19 Aug 2000 02:27:50 +0000 MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Date: Fri, 18 Aug 2000 22:30:19 -0400 (EDT) From: rst@alum.mit.edu To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] introduction In-Reply-To: References: X-Mailer: VM 6.43 under 20.4 "Emerald" XEmacs Lucid Message-ID: <14749.60918.396026.934867@patris.bel-kwinith.org> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I'm not sure I understand the proposed test case here... Harold Eaton writes: > Why not get a DVD CCA license instead of reverse-engineer the encoding > for interoperability? Well, we think the terms of the DVD CCA license > are unacceptable; we don't wish to deny customers of our films > fair use access. We wouldn't use region coding or macrovision. > We would offer at no cost a software player that would allow > for (partial?) copying once the user clicks on an acknowledgement > that it will be used soley for fair use, for example. IIRC, there's nothing about the DVDCCA license that mandates either region coding or Macrovision *on the disks*; both are optional. A disk produced with no Macrovision protection, as allowed by the license, may be copied by hooking a licensed player to any stock VCR. So, that's everything but your dialog box. I'm not sure that the format of standard DVD .IFO files allows for Macrovision to be conditionally disabled based on a menu selection, and that might bear investigation, but I'd be more surprised if that wasn't possible than if it was. > This is a very good test case IMHO. Can a small film maker publish > in DVD format, utilize access control to protect their financial > interest, and also do the right thing (tm) and give their customers > fair use? Outside of patent considerations, I don't see how the > law could prevent it. Hmmm... I think the protection you said you wanted was from exact digital copies in memory. There's nothing about CSS per se that guarantees that; it's only guaranteed if all players are produced subject to the DVDCCA license agreement. So, if CSS-capable players can be produced under a different license, or no license, CSS gives you no guarantees at all. I believe that's entirely consistent with Congressional intent, BTW; remember Ashcroft's his video-capture card. But it is the bitter pill that the MPAA claims to be gagging on... rst From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 18 22:32:22 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA05326 for dvd-discuss-outgoing; Fri, 18 Aug 2000 22:32:22 -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 WAA05323 for ; Fri, 18 Aug 2000 22:32:21 -0400 Received: from mediaone.net (h0060b03c5b8b.ne.mediaone.net [24.128.18.77]) by chmls06.mediaone.net (8.8.7/8.8.7) with ESMTP id WAA18012 for ; Fri, 18 Aug 2000 22:32:15 -0400 (EDT) Message-ID: <399DF1AD.B8402CCE@mediaone.net> Date: Fri, 18 Aug 2000 22:32:13 -0400 From: Sphere X-Mailer: Mozilla 4.73 [en] (WinNT; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Statutory blunders, was: the Fair Use doctrine References: <20000818153607.3658.qmail@web509.mail.yahoo.com> <20000818121939.A1291@localhost> <20000818164128.B1777@eldritchpress.org> <200008182058.QAA02205@soggy-fibers.ai.mit.edu> <20000818190729.B2397@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: ... > > One of the worse things that Kaplan said was his characterization > of 2600 and Linux users and computer "hackers" as advocates of > all information being free. But he might be right that if his > decision is upheld, we will all be forced into that position. > And if so, it will be a tragedy for copyright law. Copyright law should be reset to the 1887(?) statute and started over. The problem with Copyright is that they ever changed the original law. -- Sphere. No permanence. No self. No perfection. From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 18 22:39:40 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA05425 for dvd-discuss-outgoing; Fri, 18 Aug 2000 22:39:40 -0400 Received: from tbird.iworld.com ([63.236.72.237]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id WAA05422 for ; Fri, 18 Aug 2000 22:39:39 -0400 Received: (from nobody@localhost) by tbird.iworld.com (8.10.2/8.10.2) id e7J2csq16213; Fri, 18 Aug 2000 22:38:54 -0400 Date: Fri, 18 Aug 2000 22:38:54 -0400 Message-Id: <200008190238.e7J2csq16213@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] ZDNet calls decision Shocking Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Bryan Taylor wrote: >http://www.zdnet.com/eweek/stories/general/0,11011,2616841,00.html Until next week when they switch sides again. 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 Fri Aug 18 22:44:14 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA05627 for dvd-discuss-outgoing; Fri, 18 Aug 2000 22:44:14 -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 WAA05624 for ; Fri, 18 Aug 2000 22:44:13 -0400 Received: (from eds@localhost) by thud.reric.net (8.9.3/8.8.7) id VAA19850 for dvd-discuss@eon.law.harvard.edu; Fri, 18 Aug 2000 21:44:11 -0500 Date: Fri, 18 Aug 2000 21:44:11 -0500 From: Eric Seppanen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] LiViD Message-ID: <20000818214411.A19802@thud.reric.net> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <20000818214054.6232.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: <20000818214054.6232.qmail@web514.mail.yahoo.com>; from bryan_w_taylor@yahoo.com on Fri, Aug 18, 2000 at 02:40:54PM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, Aug 18, 2000 at 02:40:54PM -0700, Bryan Taylor wrote: > > > E) State clearly that LiViD does not allow storage of the > > > decrypted media on the hard drive > I think you miss my point. I'm aumming that and relying on the DVD-CCA > objecting, which then allows us to frame the issue favorably to our > side and go before a judge to ask for a declaration that we are right. > I really do want to be able to watch DVD's on open source software. By > saying "OK this particular GPL'd tool CANNOT be used for piracy" are > argument gets MUCH stronger. I see your argument, and I guess I see how that could be useful. But the problem that I see with that sort of statement is that there's a lot of valid reasons for allowing plaintext output from a player program: - fair use quoting - format and/or media shifting - program "plugins" (programs that interoperate with the player). For example MPEG hardware accelerator software may require plaintext. For reasons like these I think it's dangerous to say that a free software project should publicly state X, even if X is in a legally dubious area today. I would hope that free-software players will someday allow plaintext output for the reasons above, even if they don't today. For example, if strong encryption were still under legal clouds here, how would you feel about free-software projects announcing that their encryption wouldn't exceed 56-bit keys? I feel more comfortable with projects that stick to their guns, saying "this is what we're writing, and this is why, and if somebody's going to call it illegal where you live you might find yourself in a bit of trouble." I don't see a way to write this statement that doesn't come into direct conflict with various useful and non-copyright-infringing features that might be added in the future. I think a lot of folks would lose faith in LiViD if it decided only to accept code that "CANNOT be used for piracy". Eric From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 18 22:45:52 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA05709 for dvd-discuss-outgoing; Fri, 18 Aug 2000 22:45:52 -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 WAA05706 for ; Fri, 18 Aug 2000 22:45:52 -0400 Received: from mediaone.net (h0060b03c5b8b.ne.mediaone.net [24.128.18.77]) by chmls05.mediaone.net (8.8.7/8.8.7) with ESMTP id WAA14392 for ; Fri, 18 Aug 2000 22:45:43 -0400 (EDT) Message-ID: <399DF4D1.30BC5AEA@mediaone.net> Date: Fri, 18 Aug 2000 22:45:37 -0400 From: Sphere X-Mailer: Mozilla 4.73 [en] (WinNT; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Introduction References: <399DD463.6177EDC0@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: > > How about this: > > 1. Create some DVDs that are encrypted using the > CSS algorithm, but require completely different player > keys, a different key for each disc. This way, these > discs won't play back on a standard DVD player. > > 2. Sell some copies of that DVD to interested > parties such as ourselves, at the cost of > production. In essence, give them away at cost. > > 3. Now, offer to sell copies of the player key for > each disc for $1.00. > > This is completely within the spirit of the DMCA. > (whatever that may be.) You are making the > encrypted data generally available, and selling > access to the data by selling copies of the player > key. This is what the DMCA was supposed to > provide the legal framework for -- selling the > decryption key instead of selling the larger data > file. > > Now, of course, you have to distribute a player > that can play back these specially encrypted > DVDs. > > This player will include no player keys, and > consequently will be unable to play back > MPAA originated DVDs. Hence, the MPAA > would have no legal standing to attack the > player authors, because the player does not > decode any works copyrighted by the MPAA. > > Since each of our discs has its own player key, > this player will require a "preferences" entry > where you can type in the player key for > the disc you want to play. > > Of course, if an end user were interested in > playing back MPAA originated DVDs, on > this player, they would need to obtain > permission from the DVD-CCA in order to > type in one of the CCA-generated player > keys, but, but we aren't interested in that. > We are merely interested in using the > industry-standard CSS encryption system > to distribute our own copyrighted works in > a secure format. > > Exactly what the DMCA is there for. Fron a purely practical standpoint. Make the preferences specify a key file which contains the key. Nobody's going to be willing to enter those keys more than once. (The damn programmer in me is coming out...) -- Sphere. No permanence. No self. No perfection. From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 18 22:57:14 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA06121 for dvd-discuss-outgoing; Fri, 18 Aug 2000 22:57:14 -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 WAA06118 for ; Fri, 18 Aug 2000 22:57:13 -0400 Received: from mediaone.net (h0060b03c5b8b.ne.mediaone.net [24.128.18.77]) by chmls05.mediaone.net (8.8.7/8.8.7) with ESMTP id WAA17997 for ; Fri, 18 Aug 2000 22:57:06 -0400 (EDT) Message-ID: <399DF77F.9B86020F@mediaone.net> Date: Fri, 18 Aug 2000 22:57:03 -0400 From: Sphere X-Mailer: Mozilla 4.73 [en] (WinNT; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] ZDNet calls decision "Shocking" References: <20000819003700.10372.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: > > http://www.zdnet.com/eweek/stories/general/0,11011,2616841,00.html > And did a good job of it too. I'm very impressed by the article. We need more of those. -- Sphere. No permanence. No self. No perfection. From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 18 22:58:04 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA06307 for dvd-discuss-outgoing; Fri, 18 Aug 2000 22:58:04 -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 WAA06126 for ; Fri, 18 Aug 2000 22:57:52 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id XAA02897 for dvd-discuss@eon.law.harvard.edu; Fri, 18 Aug 2000 23:05:28 -0400 Date: Fri, 18 Aug 2000 23:05:23 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] introduction Message-ID: <20000818230523.A2729@eldritchpress.org> References: <20000818210635.A28207@lemuria.org> <200008181935.PAA10100@soggy-fibers.ai.mit.edu> <20000818172255.F1777@eldritchpress.org> <14749.54628.362104.41193@patris.bel-kwinith.org> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <14749.54628.362104.41193@patris.bel-kwinith.org>; from rst@alum.mit.edu on Fri, Aug 18, 2000 at 09:15:10PM -0400 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, Aug 18, 2000 at 09:15:10PM -0400, rst@alum.mit.edu wrote: > Eric Eldred writes: > > It would have to be CSS encrypted, and the disc would > > have to come with a license to use DeCSS to decrypt. > > And DeCSS would be on the disc and a floppy too. > > > > Then the question would be if Kaplan's ruling would > > prevent "trafficking" in technology that *is* used > > with the authorization of the copyright holder. > > It would bring into sharp focus just what authority > > model is being used by DVD-CCA. > > Well, then, I presume that the stuff on the disk would not be source > code, but something audiovisual, maybe a tape of Stallman in his > "Saint iGNUcious" get-up, so that a stock DVD player would in fact be > able to play it in some reasonable manner. > > IANAL, but when I'm thinking about these sorts of possible test cases, > I ask myself a few questions which seem to be the same that Kaplan was > at least invoking: You seem to think that we would have to sue DVD-CCA for something. Your concerns are pertinent if that is the case. (I still haven't heard any argument that says we would have to do that, for us to force them to accept our money to produce a CSS encrypted disc.) But here I am not following your idea to sue DVD-CCA, but rather just to produce a disc and license the authority to use LiViD (or DeCSS or whatever the user wants). But what I was proposing was that we simply follow Judge Kaplan's stated proposal and do everything according to his way of thinking. Produce a DVD--but then issue a license that the user has the authority of the copyright holder to use DeCSS or LiViD or whatever other player or decryption technology she wants to. Then it would be up to DVD-CCA to sue *the content copyright holder*--for what? Violation of the license? Violating the secret contract with DVD-CCA? (I doubt it ever thought of such a thing.) "Trafficking" in some decryption technology that is issued *with* the authorization of the content copyright holder? Violation of the CSS patents or trade secrets? > Q1) What legitimate purpose are the complainants trying to achieve? Who cares, we issue the disc and everybody can watch RMS rant. No person in his right mind would agree this has a legitimate purpose. But it is certainly constitutional. It's free speech, and it's copyrighted (or lefted). The purpose would be the same as yours, to allow users to view the video on a GNU/Linux machine, using the player of our choice, to view the discs we lawfully purchase. Anyway, who in his right mind would want to watch any CSS-encrypted DVD? One thought is also that DVDs need not always store copyrighted material. But it still might be important to protect the compilation of copyrighted material with some access control. Consider, for example, Microsoft Reader encrypting a book that is in the public domain. It's possible that some arrangement of the public domain material might be copyrightable. In such a case, it should be the privilege of the copyright holder to use CSS to encrypt the work--but also the privilege of the copyright holder to provide some means for the public to access the component works which the public owns. If the copyright holder specifically authorizes this, then how can the DVD-CCA say this is illegal? Again, it is a way to show that there is a fair use and isolate the DVD-CCA's authority away from the copyright holder's. > Q2) What alternatives do they have within the letter of the law > being challenged? They can just let us sell the disc without claiming a monopoly to prevent us from free trade. The alternative might be to wait for the 3 vaporware players, but they are likely to be bound up with hardware cards and not open source. We can show that users prefer open source. > Q3) How much do the alternatives available under the law truly harm > their ability to achieve their legitimate purpose? Hey, it's OUR legitimate purpose here, not theirs. > Q4) How much are the complainants' interests and rights actually > harmed? It's OURS that would be harmed if we were restrained from selling the disc. The only harm they can show is the same as in Corley, that there is a *threat* in the future. But *our* harm would be clear and present. > A2) They can apply to the DVDCCA for a license. It doesn't cost a > *whole* lot of money, but it does require the agreement to > conditions which, as indicated above, they find noxious. Fine, apply to DVD-CCA for a license if necessary, it's only $9,200 to be a content producer and use CSS encryption. I still don't see how they can turn us down (as content producers). > Furthermore, the reason that the plaintiffs are being harmed is > precisely because the MPAA is claiming authority to regulate the > manufacture of devices, which attacks authority models directly. > So, it seems to me that LiVid itself provides a better test case > than your demo, and the facts are readily at hand. Okay, LiViD, DeCSS, whatever, if that is what it takes to use the disc, *and if that is what the copyright holder authorizes* then go with LiViD or some other player. It really has to come from the *content copyright holder* and not from DVD-CCA as some authority by virtue of issuing licenses. I propose we simply use the keys already in CSS, and do it perfectly legally. The question should not be so involved. It is simply a means of distributing an authority for users to use their own players. The point really is that Judge Kaplan completely missed the whole idea of copyright that we should have been trying to present. It is a simple one, based exactly on the Constitution, that the limited statutory monopoly of copyright does not bar fair use, no matter what Congress might try to say in one part of the DMCA considered separately from the rest. He seems to think that copyright is only another means to extract money from the customer, and that copyright is just another private property right like real property. And that the statutory monopoly on content can extend to players and a lot of other matters. Judge Kaplan sneers at 2600 for placing a copyright on its magazines and web sites (footnote 6 ignores the role of copyright in open source; footnote 47 on page 17 does the sneering, ignoring the proper role of copyright here as distinct from the money-making operation of the Hollywood racket). What I am suggesting is that we move the debate away from "piracy." Instead of using content from some other copyright holder, use our own, Free Software's (or any other open source content similarly licensed). Isolate the main issue of authority here away from the issue of copyright infringement, to just "access control." Show that there is a valid commercial interest in issuing players for copyrighted content, and that DVD-CCA should not have a monopoly guaranteed by copyright law in this area distinct from copyright content. Otherwise we are back with the Stationers' Company law of copyright, where we all started trying to get away from by the Statute of Anne. I don't think we can get far by just suing DVD-CCA to let us produce LiViD. Instead, just produce it and let them sue us. But first make the case stand up so it will adhere to Kaplan's guidelines. Own the content and license the authority ourselves. Then LiViD (and DeCSS) will be out of the bag. From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 18 23:08:36 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA06506 for dvd-discuss-outgoing; Fri, 18 Aug 2000 23:08:36 -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 XAA06503 for ; Fri, 18 Aug 2000 23:08:35 -0400 Received: from mediaone.net (h0060b03c5b8b.ne.mediaone.net [24.128.18.77]) by chmls06.mediaone.net (8.8.7/8.8.7) with ESMTP id XAA29013 for ; Fri, 18 Aug 2000 23:08:26 -0400 (EDT) Message-ID: <399DFA22.E012A136@mediaone.net> Date: Fri, 18 Aug 2000 23:08:18 -0400 From: Sphere X-Mailer: Mozilla 4.73 [en] (WinNT; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] code as speech References: <20000819023146.F12126@lemuria.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 My first reaction is that for the people who have neither programming skills nor know german you might as well have been speaking in german. Tom Vogt wrote: > > I've been working on one other thing the past 2 hours, and I'd like to give > these two lists a sneak preview, and harvest comments before publishing it. > > first, an example: > > network protocoll. > not make much sense, but IS an english text, with (mostly) correct grammar > but these companies are not provided with the proprietary CSS information at issue. > licensees implementing authentication and descrambling functions in the software are required to do so only in a manner that obscures the proprietary CSS technology at issue, > licensees are subject to a very stringent set of rules to ensure the maintenance of confidentiality within the group of licensees. > Both forms of distribution are such that the proprietary technology cannot be viewed by non-licensees. > The proprietary technology is not accessible to unlicensed third parties because it is either incorporated in hardware devices -- chips -- or made tamper resistant if distributed in the form of actual software. > Both forms of distribution are such that the proprietary technology cannot be viewed by non-licensees. > Each licensee is assigned a set of 'master keys' unique to each licensee. > DVD CCA is informed and believes, > The CSS Agreement mandates that licensees provide the proprietary CSS technology at issue only to the strictest minimum number of licensee's employees who require access to the information, > The CSS Agreement requires licensees to maintain the confidentiality of certain defined pieces of information, > > [...] > > and so on, for roughly 500 lines. > > this looks a lot like a cut-and-mixed version of the DVD CCA's very own TRO > paper, and that's indeed what it is. a remix? a piece of word-art? well, > maybe. it's been created by the following short php script: > > $file = file("wordlist"); > $input = fopen("php://stdin","r"); > while (!feof($input)) { > $char=fgetc($input); > echo $file[ord($char)]; > } > > this reads in any file (text or binary) from stdin and converts it into a > textfile. there is a 1:1 relation between bytes in the original file and > lines in the output file. if you know the textfile, you can reverse the > process and get the inputfile back. > > the inputfile for the above snippet was decss.h > > in other words: I have found a way to express decss in terms of the DVD > CCA's own legal papers. > it gets more interesting: I believe I do have an access control system here. > while you can read the garbage, it won't make much sense. it's an encryption, > much like CSS (I can read the DVD, but without DeCSS, it's just garbage). > (the similiarities do not end there - both are very crappy encryption > systems. :) ) > > obviously, the script itself is way too simple to be the access control. > everyone with half a brain can write a better one in any of a dozen > programming languages. the textfile used ("wordlist") is required to access > the original content, and is not easily reverse-engineered. > > is distribution of the input textfile without my consent "trafficking in > circumvention tools" as described by the DMCA ? > > if so, what if I choose to use the constitution as my input textfile? > > and of course: will the DVD CCA sue minced-up versions of it's very own > legal documents? > > I'm sure I've not yet discovered all the interesting points of this. > > the full package - including an already "encrypted" copy of DeCSS plus - > will be available on my website tomorrow. in the meantime, I'd like to > invite comments on the idea. > > -- > "The net treats censorship as a malfunction and re-routes around it." > (John Gilmore) -- Sphere. No permanence. No self. No perfection. From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 18 23:12:17 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA06626 for dvd-discuss-outgoing; Fri, 18 Aug 2000 23:12:17 -0400 Received: from prserv.net (out4.prserv.net [32.97.166.34]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id XAA06623 for ; Fri, 18 Aug 2000 23:12:16 -0400 Received: from patris.bel-kwinith.org ([129.37.108.25]) by prserv.net (out4) with SMTP id <2000081903121323901qhik1e>; Sat, 19 Aug 2000 03:12:14 +0000 MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Date: Fri, 18 Aug 2000 23:11:18 -0400 (EDT) From: rst@alum.mit.edu To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Introduction In-Reply-To: <399DD463.6177EDC0@uic.edu> References: <399DD463.6177EDC0@uic.edu> X-Mailer: VM 6.43 under 20.4 "Emerald" XEmacs Lucid Message-ID: <14749.63133.560899.692152@patris.bel-kwinith.org> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu John Schulien writes: > Of course, if an end user were interested in > playing back MPAA originated DVDs, on > this player, they would need to obtain > permission from the DVD-CCA in order to > type in one of the CCA-generated player > keys, but, but we aren't interested in that. > We are merely interested in using the > industry-standard CSS encryption system > to distribute our own copyrighted works in > a secure format. > > Exactly what the DMCA is there for. Hmmm... this one has more promise. Still, because I'm feeling punchy tonight, here are a couple of possible lines of attack on it: 1) The MPAA could claim, with some justification, that you aren't *really* going into business to sell your not-quite-CSS protected DVDs, and that their creation is really just a pretext for distributing a player that (with the addition of one 40-bit number easily determined by Stevenson's code) becomes instantly a full-fledged "circumvention" device. I believe the reason that the trafficking ban says "only limited commercial purpose other than to circumvent" is precisely to enable this sort of argument. 2) They could also argue, ironically enough, that given the known flaws in the CSS encryption, relaxation of the regulations which supposedly kept them from using decent crypto, and your expressed desire *not* to enable playback of DVDCCA-CSS-protected disks, there is no reason for you not to choose better technology (say, RC4 or Blowfish), which would as a side benefit guarantee that your player can't be used for "circumvention" --- something you claim not to want. Also, like a lot of the other candidate test cases here, it relies on the MPAA suing to block distribution. If they think their case is weak, they could always decline to sue. Then what? Lastly, remember that the case we've already got (LiVid in Universal v. Corley) does raise a lot of the authority issues already, in a form which is potentially very useful. Let's not give it short shrift... rst From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 18 23:13:01 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA06634 for dvd-discuss-outgoing; Fri, 18 Aug 2000 23:13:01 -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 XAA06631 for ; Fri, 18 Aug 2000 23:12:49 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id XAA02917 for dvd-discuss@eon.law.harvard.edu; Fri, 18 Aug 2000 23:20:25 -0400 Date: Fri, 18 Aug 2000 23:20:20 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] introduction Message-ID: <20000818232020.B2729@eldritchpress.org> References: Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: ; from haceaton@hotmail.com on Fri, Aug 18, 2000 at 10:07:02PM -0400 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I like the idea. One legitimate purpose to this project would simply be to allow small content producers (even individuals) to publish content without paying the $9,200 to DVD-CCA membership. (Kaplan talks about it being "royalty-free" but his footnote 63, page 28, points out the "administrative fee" is "about" this amount.) Judge Kaplan has missed the enormous point that the Supreme Court has already tried to teach him: the Internet is a great new technology that allows every person to be a publisher. The content producers that have enjoyed monopolies to date, such as Hollywood, had better adapt--or die, as Senator Hatch suggests. On Fri, Aug 18, 2000 at 10:07:02PM -0400, Harold Eaton wrote: >... > I think there is a far better plan available, but it probably > involves being a defendant rather than plaintiff (but then so > does the LiVid challenge I think). > > We should make some films (I can think of a few nice documentaries) > and sell them on DVD with CSS encryption, but not under a DVD CCA > license. I think we can encrypt the VOB files with DeCSS or the reverse engineered programs Tom and Stevenson have mentioned. But I believe we would still have to go to a DVD manufacturer (with a DVD-CCA license) in order to produce the discs, even quantity one. The key tracks can't be recorded by a DVD recorder. (I still await evidence that a manufacturer would not stamp the discs for us.) > What is the purpose? Well, to sell movies, with access control to > prevent their being directly copied with a DVD Ram for example. We > want to prevent such copying because it will eat into sales of the > disc. > > Why use CSS instead of some other scheme? The installed base of > DVD players is quite large. It would be virtually impossible to > require people to buy yet another new player technology from a small > independent film maker. The only reasonable option is to target > existing DVD players. That's not to say we couldn't offer a better > player, just that it would be crazy to require it. > > Why not get a DVD CCA license instead of reverse-engineer the encoding > for interoperability? Well, we think the terms of the DVD CCA license > are unacceptable; we don't wish to deny customers of our films > fair use access. We wouldn't use region coding or macrovision. > We would offer at no cost a software player that would allow > for (partial?) copying once the user clicks on an acknowledgement > that it will be used soley for fair use, for example. > > This is a very good test case IMHO. Can a small film maker publish > in DVD format, utilize access control to protect their financial > interest, and also do the right thing (tm) and give their customers > fair use? Outside of patent considerations, I don't see how the > law could prevent it. Yes, we also need to have the content copyright owner grant *a specific license of authority* to the disc purchaser to use LiViD or some other non-CCA-licensed player, would we not? Would that not cover the legal aspects, according to Kaplan's decision? I suggest that the filmmaker be from a country other than the U.S. But if that is not possible then we ought to try to get some pre-1923 Hollywood films digitized and put out a compilation. That ought to bring Kaplan back to the future. -- "Eric" Eric Eldred Eldritch Press mailto:Eldred@EldritchPress.org http://www.eldritchpress.org/EricEldred.vcf From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 18 23:23:12 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA07024 for dvd-discuss-outgoing; Fri, 18 Aug 2000 23:23:12 -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 XAA07018 for ; Fri, 18 Aug 2000 23:23:01 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id XAA02957; Fri, 18 Aug 2000 23:30:22 -0400 Date: Fri, 18 Aug 2000 23:30:17 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Cc: decss@lists.lemuria.org Subject: Re: [dvd-discuss] code as speech Message-ID: <20000818233016.C2729@eldritchpress.org> References: <20000819023146.F12126@lemuria.org> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <20000819023146.F12126@lemuria.org>; from tom@lemuria.org on Sat, Aug 19, 2000 at 02:31:46AM +0200 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Isn't this idea very similar to the ideas of Publius and other distributed, scrambled systems? I think they often publish plaintexts that are then combined by some key and algorithm to another plaintext. The original plaintexts are not in copyright. The final plaintext exists only transiently. The key is not the content. On Sat, Aug 19, 2000 at 02:31:46AM +0200, Tom Vogt wrote: > I've been working on one other thing the past 2 hours, and I'd like to give > these two lists a sneak preview, and harvest comments before publishing it. .... My question is then how can we tell what the legal status of this process is? The other examples of distributed file sharing have not been tested in court to my knowledge. It is clever, and no doubt continues to blur the dividing line between obvious free speech and obviously unprotected content. But it is probably too late to impact either DeCSS case, isn't it? -- "Eric" Eric Eldred Eldritch Press mailto:Eldred@EldritchPress.org http://www.eldritchpress.org/EricEldred.vcf From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 18 23:37:54 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA07162 for dvd-discuss-outgoing; Fri, 18 Aug 2000 23:37:54 -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 XAA07140 for ; Fri, 18 Aug 2000 23:37:42 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id XAA02975 for dvd-discuss@eon.law.harvard.edu; Fri, 18 Aug 2000 23:45:18 -0400 Date: Fri, 18 Aug 2000 23:45:13 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Introduction Message-ID: <20000818234513.D2729@eldritchpress.org> References: <399DD463.6177EDC0@uic.edu> <14749.63133.560899.692152@patris.bel-kwinith.org> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <14749.63133.560899.692152@patris.bel-kwinith.org>; from rst@alum.mit.edu on Fri, Aug 18, 2000 at 11:11:18PM -0400 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, Aug 18, 2000 at 11:11:18PM -0400, rst@alum.mit.edu wrote: > John Schulien writes: > > > Of course, if an end user were interested in > > playing back MPAA originated DVDs, on > > this player, they would need to obtain > > permission from the DVD-CCA in order to > > type in one of the CCA-generated player > > keys, but, but we aren't interested in that. > > We are merely interested in using the > > industry-standard CSS encryption system > > to distribute our own copyrighted works in > > a secure format. > > > > Exactly what the DMCA is there for. > > Hmmm... this one has more promise. Still, because I'm feeling punchy > tonight, here are a couple of possible lines of attack on it: > > 1) The MPAA could claim, with some justification, that you aren't > *really* going into business to sell your not-quite-CSS protected > DVDs, and that their creation is really just a pretext for > distributing a player that (with the addition of one 40-bit number > easily determined by Stevenson's code) becomes instantly a > full-fledged "circumvention" device. Of course, this allows in the "compatibility" and "reverse engineering" exceptions, directly, that were excluded from Corley. The LiViD player is not necessarily covered by Kaplan's findings. It has obvious commercial value--just have people sell the discs--nobody is going to give the discs away. > I believe the reason that the trafficking ban says "only limited > commercial purpose other than to circumvent" is precisely to > enable this sort of argument. > > 2) They could also argue, ironically enough, that given the known > flaws in the CSS encryption, relaxation of the regulations which > supposedly kept them from using decent crypto, and your expressed > desire *not* to enable playback of DVDCCA-CSS-protected disks, > there is no reason for you not to choose better technology (say, > RC4 or Blowfish), which would as a side benefit guarantee that > your player can't be used for "circumvention" --- something you > claim not to want. > > Also, like a lot of the other candidate test cases here, it relies on > the MPAA suing to block distribution. If they think their case is > weak, they could always decline to sue. Then what? Then we distribute LiViD and DeCSS, for the "commercial purpose" the law is written to protect. The kayakers proceed down the Hudson. DVD-CCA has to sue. But they have to chose better grounds than in Corley. And they have to expose their authority model. Even if DVD-CCA would win such a case (in another circuit, if we were clever) we could try to use that case to join with Corley to bring out the issues more clearly. > Lastly, remember that the case we've already got (LiVid in Universal > v. Corley) does raise a lot of the authority issues already, in a form > which is potentially very useful. Let's not give it short shrift... Yes, but the "overbreadth" response from Kaplan is intended to kill that thread. I suggest we might do well to raise the "authority" issue straightaway for LiViD, and not involve DeCSS except peripherally. As you have eloquently pointed out, I believe, the MPAA chose the Corley case with care. We ought to do the same for a counterattack. Suppose we follow Harold's idea of producing a video and encrypting it with CSS, and then licensing it for Linux use and LiViD players if necessary. Then we produce and sell the DVDs, and automatically LiViD is authorized by the content copyright holder. It has a valid "commercial use". DVD-CCA could sue to stop this, but not if we follow Kaplan's recommendations to the letter. They would have to use other grounds, such as trade secrets or patent. Or then we directly raise the misuse of copyright law to restrain trade. Robert, sleep on it and we will try later to make the discussion more complete. We still have to go over the decision with a fine tooth comb and bring out points we need to attack. From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 18 23:47:40 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA07465 for dvd-discuss-outgoing; Fri, 18 Aug 2000 23:47:40 -0400 Received: from smtp05.primenet.com (smtp05.primenet.com [206.165.6.135]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id XAA07462 for ; Fri, 18 Aug 2000 23:47:38 -0400 Received: (from daemon@localhost) by smtp05.primenet.com (8.9.3/8.9.3) id UAA29825 for ; Fri, 18 Aug 2000 20:47:40 -0700 (MST) Received: from sessions.phx.primenet.com(206.132.239.114), claiming to be "heorot.lumbercartel.com" via SMTP by smtp05.primenet.com, id smtpdAAACaayn6; Fri Aug 18 20:47:36 2000 Received: from frankenstein.lumbercartel.com (IDENT:dcs@frankenstein.lumbercartel.com [192.168.6.2]) by heorot.lumbercartel.com (8.9.3/8.8.7) with SMTP id UAA04081 for ; Fri, 18 Aug 2000 20:47:28 -0700 From: "D. C. Sessions" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] the Fair Use doctrine Date: Fri, 18 Aug 2000 20:41:52 -0700 X-Mailer: KMail [version 1.0.29] Content-Type: text/plain References: <20000818180659.21180.qmail@web513.mail.yahoo.com> <200008181832.OAA23402@soggy-fibers.ai.mit.edu> In-Reply-To: <200008181832.OAA23402@soggy-fibers.ai.mit.edu> MIME-Version: 1.0 Message-Id: <00081820453002.26430@frankenstein.lumbercartel.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, 18 Aug 2000, Robert S. Thau wrote: > Bryan Taylor writes: > > Well, I suppose you could say that he explained why he didn't respond, > > but he made no attempt to even disagree. He seems to be inviting > > members of the "fair use community" to file suit. (I guess declarations > > and amicus briefs aren't good enough). Perhaps the EFF should take him > > up on that offer. > > Well, actually, he's inviting the "fair use community" to *construct a > proper test case*, in which the fair use doctrine applies immediately > and directly to the facts in evidence --- a library wanting to do a > media transfer, for example. Then, he says, the judge or judges > reviewing that case will be able to see how the issues play out in the > real world, as opposed to considering hypothetical situations with no > knowledge of how often they would arise in practice, or whether they > would really arise at all (de minimis non curat lex). > > And while Kaplan's done a lot of unreasonable things in this case, I'm > actually not sure that this is one of them. No, it's quite reasoned. The beauty of the way this has been set up is that fair use can be effectively removed without ever appearing as an issue in court. The reason is that, according to Kaplan's decision, there are no legal means to exercise fair use. Nobody will ever be brought as a defendent in an infringment case (where fair use would be a defence) because they will never have the means to exercise fair use in the first place. And no device suitable for fair use will ever be available because fair use issues are not relevant to "circumvention device" cases. It's Catch-22 all over again. -- | Microsoft: "A reputation for releasing inferior software will make | | it more difficult for a software vendor to induce customers to pay | | for new products or new versions of existing products." | +----------- D. C. & M. V. Sessions ----------+ From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 18 23:47:37 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA07457 for dvd-discuss-outgoing; Fri, 18 Aug 2000 23:47:37 -0400 Received: from smtp03.primenet.com (smtp03.primenet.com [206.165.6.133]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id XAA07454 for ; Fri, 18 Aug 2000 23:47:35 -0400 Received: (from daemon@localhost) by smtp03.primenet.com (8.9.3/8.9.3) id UAA27999 for ; Fri, 18 Aug 2000 20:46:33 -0700 (MST) Received: from sessions.phx.primenet.com(206.132.239.114), claiming to be "heorot.lumbercartel.com" via SMTP by smtp03.primenet.com, id smtpdAAAnZayP2; Fri Aug 18 20:46:29 2000 Received: from frankenstein.lumbercartel.com (IDENT:dcs@frankenstein.lumbercartel.com [192.168.6.2]) by heorot.lumbercartel.com (8.9.3/8.8.7) with SMTP id UAA04078 for ; Fri, 18 Aug 2000 20:47:27 -0700 From: "D. C. Sessions" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Kaplan on the chain of authority Date: Fri, 18 Aug 2000 20:36:33 -0700 X-Mailer: KMail [version 1.0.29] Content-Type: text/plain References: <399D81EE.7E13F32A@uic.edu> In-Reply-To: <399D81EE.7E13F32A@uic.edu> MIME-Version: 1.0 Message-Id: <00081820413201.26430@frankenstein.lumbercartel.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, 18 Aug 2000, John Schulien wrote: > Given that using DeCSS requires a computer DVD drive to > operate, and given that most if not all computer DVD drives > are sold with player software bundled, it appears that by > Kaplan's own tortured logic, most if not all potential users > of DeCSS have already "lawfully gained access to the > [CSS] keys" when they purchased the drive needed to > operate DeCSS, because according to Kaplan, that's > where the end user receives authority. This would only apply in a defense against a direct charge of infringement. The DVDCCA is not bringing any such, and if they are reasonably wise WON'T bring any such until their hold on any and all equipment usable for playing DVDs is securly locked up. Once there are no possible players that don't meet their specifications, fair use for almost everyone will be economically negligible. The few cases that are worth acting on will be so flagrant that they won't need anything other than old-fashioned copyright law, as with the recent cases of CD music piracy -- which, please note, needed no reference to DMCA. -- | Microsoft: "A reputation for releasing inferior software will make | | it more difficult for a software vendor to induce customers to pay | | for new products or new versions of existing products." | +----------- D. C. & M. V. Sessions ----------+ From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 18 23:56:33 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA07812 for dvd-discuss-outgoing; Fri, 18 Aug 2000 23:56:33 -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 XAA07809 for ; Fri, 18 Aug 2000 23:56:32 -0400 Received: from mediaone.net (h0060b03c5b8b.ne.mediaone.net [24.128.18.77]) by chmls06.mediaone.net (8.8.7/8.8.7) with ESMTP id XAA10381 for ; Fri, 18 Aug 2000 23:56:22 -0400 (EDT) Message-ID: <399E0560.EF46644D@mediaone.net> Date: Fri, 18 Aug 2000 23:56:16 -0400 From: Sphere X-Mailer: Mozilla 4.73 [en] (WinNT; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss Subject: [dvd-discuss] Licensing Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu What would happen if we were to simply make a non-encrypted DVD and license it only for use with LiViD? (I assume LiViD can play non-encrypted DVDs.) I'll pay $10 for one. Is $10 enough for someone to potentially make a profit selling a small number of disks? (That is, be a valid commercial use. I don't even have a DVD player, but I'll buy one anyway.) -- Sphere. No permanence. No self. No perfection. From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 19 00:01:02 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA07938 for dvd-discuss-outgoing; Sat, 19 Aug 2000 00:01:02 -0400 Received: from smtp05.primenet.com (smtp05.primenet.com [206.165.6.135]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id AAA07920 for ; Sat, 19 Aug 2000 00:00:56 -0400 Received: (from daemon@localhost) by smtp05.primenet.com (8.9.3/8.9.3) id VAA04171 for ; Fri, 18 Aug 2000 21:00:58 -0700 (MST) Received: from sessions.phx.primenet.com(206.132.239.114), claiming to be "heorot.lumbercartel.com" via SMTP by smtp05.primenet.com, id smtpdAAASSaGdi; Fri Aug 18 21:00:49 2000 Received: from frankenstein.lumbercartel.com (IDENT:dcs@frankenstein.lumbercartel.com [192.168.6.2]) by heorot.lumbercartel.com (8.9.3/8.8.7) with SMTP id VAA04106 for ; Fri, 18 Aug 2000 21:00:41 -0700 From: "D. C. Sessions" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] LiViD Date: Fri, 18 Aug 2000 20:48:06 -0700 X-Mailer: KMail [version 1.0.29] Content-Type: text/plain References: <20000818214054.6232.qmail@web514.mail.yahoo.com> <20000818214411.A19802@thud.reric.net> In-Reply-To: <20000818214411.A19802@thud.reric.net> MIME-Version: 1.0 Message-Id: <00081820522000.26462@frankenstein.lumbercartel.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, 18 Aug 2000, Eric Seppanen wrote: > On Fri, Aug 18, 2000 at 02:40:54PM -0700, Bryan Taylor wrote: > > > > > E) State clearly that LiViD does not allow storage of the > > > > decrypted media on the hard drive > > > > > I think you miss my point. I'm aumming that and relying on the DVD-CCA > > objecting, which then allows us to frame the issue favorably to our > > side and go before a judge to ask for a declaration that we are right. > > > > > I really do want to be able to watch DVD's on open source software. By > > saying "OK this particular GPL'd tool CANNOT be used for piracy" are > > argument gets MUCH stronger. > > I see your argument, and I guess I see how that could be useful. But the > problem that I see with that sort of statement is that there's a lot of > valid reasons for allowing plaintext output from a player program: > - fair use quoting > - format and/or media shifting > - program "plugins" (programs that interoperate with the player). For > example MPEG hardware accelerator software may require plaintext. > > For reasons like these I think it's dangerous to say that a free software > project should publicly state X, even if X is in a legally dubious area > today. I would hope that free-software players will someday allow > plaintext output for the reasons above, even if they don't today. No, you just take the same approach that the Plaintiffs did in New York: specify this up front to make any question of copying irrelevant. The opposition can of course try to drag copying into the matter, but the defense just keeps pointing out that the product in question does not copy, so that copying is not a matter before the Court (same as fair use wasn't before the Court in New York.) Boil the frog slowly. -- | Microsoft: "A reputation for releasing inferior software will make | | it more difficult for a software vendor to induce customers to pay | | for new products or new versions of existing products." | +----------- D. C. & M. V. Sessions ----------+ From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 19 00:01:56 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA07971 for dvd-discuss-outgoing; Sat, 19 Aug 2000 00:01:56 -0400 Received: from prserv.net (out4.prserv.net [32.97.166.34]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id AAA07968 for ; Sat, 19 Aug 2000 00:01:53 -0400 Received: from patris.bel-kwinith.org ([32.100.55.99]) by prserv.net (out4) with SMTP id <2000081904014123901s0g09e>; Sat, 19 Aug 2000 04:01:42 +0000 From: "Robert S. Thau" MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Date: Sat, 19 Aug 2000 00:00:46 -0400 (EDT) To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] introduction In-Reply-To: <20000818230523.A2729@eldritchpress.org> References: <20000818210635.A28207@lemuria.org> <200008181935.PAA10100@soggy-fibers.ai.mit.edu> <20000818172255.F1777@eldritchpress.org> <14749.54628.362104.41193@patris.bel-kwinith.org> <20000818230523.A2729@eldritchpress.org> X-Mailer: VM 6.43 under 20.4 "Emerald" XEmacs Lucid Message-ID: <14749.64358.263678.23652@patris.bel-kwinith.org> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Eric Eldred writes: > But what I was proposing was that we simply > follow Judge Kaplan's stated proposal and do everything > according to his way of thinking. Produce a DVD--but then > issue a license that the user has the authority of the > copyright holder to use DeCSS or LiViD or whatever other > player or decryption technology she wants to. Then it > would be up to DVD-CCA to sue *the content copyright > holder*--for what? Violation of the license? Violating > the secret contract with DVD-CCA? (I doubt it ever thought > of such a thing.) "Trafficking" in some decryption technology > that is issued *with* the authorization of the content copyright > holder? Violation of the CSS patents or trade secrets? Fine, you issue the disk, and distribute LiVid as a way of viewing it. You say you are distributing LiVid solely to allow viewing of your disk. The MPAA sues, claiming that you are distributing LiVid as a circumvention device, and that the disk is a mere pretext for doing so. You then have to convince the court that allowing people to view your disk is a legitimate purpose for distributing LiVid, so much so that indeed, your constitutional rights have been violated if you are unable to do so. How do you proceed? > > Q1) What legitimate purpose are the complainants trying to achieve? > > Who cares, we issue the disc and everybody can watch RMS > rant. No person in his right mind would agree this has > a legitimate purpose. This is not a winning argument. > But it is certainly constitutional. > It's free speech, and it's copyrighted (or lefted). But the same would apply if you distributed the rant as a DVD without CSS, or as a plain old MPEG. Your viewers would get the exact same experience, and nobody runs afoul of *anyone's* interpretation of the DMCA. What is the speech act which (the MPAA's interpretation of) the DMCA is preventing you from performing? What is its expressive content? > The purpose would be the same as yours, to allow users to view > the video on a GNU/Linux machine, using the player of our > choice, to view the discs we lawfully purchase. So, why do we need your RMS disk? We can make that argument on the basis of the studios' disks, and the case we already have. > Anyway, who in his right mind would want to watch any > CSS-encrypted DVD? Ummm... lots of people; film buffs who want access to the interviews thrown in as extras on many classic film DVDs, completely unavailable in other formats, for starters. But if you really believe that no one in his right mind would want to watch any CSS-encrypted DVD, and you're prepared to say so in court, you should also be prepared for that court to completely lose interest in anything else that you might have to say about CSS. > One thought is also that DVDs need not always store copyrighted > material. But it still might be important to protect the > compilation of copyrighted material with some access control. > Consider, for example, Microsoft Reader encrypting a book that > is in the public domain. It's possible that some arrangement > of the public domain material might be copyrightable. In such > a case, it should be the privilege of the copyright holder to > use CSS to encrypt the work--but also the privilege of the > copyright holder to provide some means for the public to access > the component works which the public owns. If the copyright > holder specifically authorizes this, then how can the DVD-CCA > say this is illegal? Again, it is a way to show that there is > a fair use and isolate the DVD-CCA's authority away from the > copyright holder's. As I've already said, if you don't want to protect a work at all, then there's no earthly reason to use CSS --- and if you do want to protect a work with CSS, then you need the MPAA's case to stick (CSS decoding only with a DVD-CCA license), since the protection comes entirely from the license, and not at all from CSS itself. You might want some other set of protections than the CSS license provides, but CSS can't and won't give that to you --- if you could impose your own licensing terms, then so could anyone else, and the protection would be completely vitiated. Which isn't a problem with CSS --- the studios want the protections that it provides; if you want something else, you're free to design your own machinery. In short, there's no earthly reason to distribute CSS-encoded content *unless you want the exact set of copy and use restrictions that the DVD-CCA's license mandates* --- and if that's what you want, then the DVD-CCA will give it to you happily. Either way, you, as a potential CSS-content-distributor, have nothing to complain about. > > Q2) What alternatives do they have within the letter of the law > > being challenged? > > They can just let us sell the disc without claiming a monopoly > to prevent us from free trade. The alternative might be to > wait for the 3 vaporware players, but they are likely to be > bound up with hardware cards and not open source. We can show > that users prefer open source. Sigh... the question asks what alternatives the complainants have --- what alternative means you have of distributing your RMS rant. There are innumerable answers. I thought that was clear from context; sorry for the sloppy editing. > I don't think we can get far by just suing DVD-CCA to let > us produce LiViD. Instead, just produce it and let them > sue us. But first make the case stand up so it will adhere > to Kaplan's guidelines. Own the content and license the > authority ourselves. Then LiViD (and DeCSS) will be out > of the bag. Huh? They already *have* come and sued us. Haven't you noticed? And I really don't see how producing your own CSS-encoded disk, with or without a DVD-CCA license to do so, will strengthen the case. Sigh... enough of test cases, certainly for tonight. It's fun, and potentially enlightening, but the immediate problem is trying to win the case we have. Let's not forget that. rst From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 19 00:00:58 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA07926 for dvd-discuss-outgoing; Sat, 19 Aug 2000 00:00:58 -0400 Received: from smtp03.primenet.com (smtp03.primenet.com [206.165.6.133]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id AAA07923 for ; Sat, 19 Aug 2000 00:00:57 -0400 Received: (from daemon@localhost) by smtp03.primenet.com (8.9.3/8.9.3) id UAA00466 for ; Fri, 18 Aug 2000 20:59:49 -0700 (MST) Received: from sessions.phx.primenet.com(206.132.239.114), claiming to be "heorot.lumbercartel.com" via SMTP by smtp03.primenet.com, id smtpdAAA2Ra44a; Fri Aug 18 20:59:43 2000 Received: from frankenstein.lumbercartel.com (IDENT:dcs@frankenstein.lumbercartel.com [192.168.6.2]) by heorot.lumbercartel.com (8.9.3/8.8.7) with SMTP id VAA04109 for ; Fri, 18 Aug 2000 21:00:42 -0700 From: "D. C. Sessions" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] introduction Date: Fri, 18 Aug 2000 20:53:35 -0700 X-Mailer: KMail [version 1.0.29] Content-Type: text/plain References: <20000818210635.A28207@lemuria.org> <14749.54628.362104.41193@patris.bel-kwinith.org> <20000818230523.A2729@eldritchpress.org> In-Reply-To: <20000818230523.A2729@eldritchpress.org> MIME-Version: 1.0 Message-Id: <00081820584301.26462@frankenstein.lumbercartel.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, 18 Aug 2000, Eric Eldred wrote: > On Fri, Aug 18, 2000 at 09:15:10PM -0400, rst@alum.mit.edu wrote: > But what I was proposing was that we simply > follow Judge Kaplan's stated proposal and do everything > according to his way of thinking. Produce a DVD--but then > issue a license that the user has the authority of the > copyright holder to use DeCSS or LiViD or whatever other > player or decryption technology she wants to. Then it > would be up to DVD-CCA to sue *the content copyright > holder*--for what? Violation of the license? Violating > the secret contract with DVD-CCA? (I doubt it ever thought > of such a thing.) "Trafficking" in some decryption technology > that is issued *with* the authorization of the content copyright > holder? Violation of the CSS patents or trade secrets? No, they sue for traficking in a device primarily used for circumvention. They take no action whatever against the DVD (obviously) but just sue the nads off of whoever provides the software. The software provider could try to defend on the grounds that it had another use, but the Court just finds that the other use is artificial (using, perhaps, this list archive as evidence of intent) and of no compelling economic weight compared to the overwhelming value of copyrighted Hollywood content that it was obviously meant to rip. Remember, the statute doesn't require that the decryption mechanism have NO other use, just that the weight of economic use not be legit. -- | Microsoft: "A reputation for releasing inferior software will make | | it more difficult for a software vendor to induce customers to pay | | for new products or new versions of existing products." | +----------- D. C. & M. V. Sessions ----------+ From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 19 00:22:02 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA08172 for dvd-discuss-outgoing; Sat, 19 Aug 2000 00:22:02 -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 AAA08169 for ; Sat, 19 Aug 2000 00:22:01 -0400 Received: from mediaone.net (h0060b03c5b8b.ne.mediaone.net [24.128.18.77]) by chmls06.mediaone.net (8.8.7/8.8.7) with ESMTP id AAA14755 for ; Sat, 19 Aug 2000 00:21:58 -0400 (EDT) Message-ID: <399E0B67.3739B344@mediaone.net> Date: Sat, 19 Aug 2000 00:21:59 -0400 From: Sphere X-Mailer: Mozilla 4.73 [en] (WinNT; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] introduction References: <20000818210635.A28207@lemuria.org> <200008181935.PAA10100@soggy-fibers.ai.mit.edu> <20000818172255.F1777@eldritchpress.org> <14749.54628.362104.41193@patris.bel-kwinith.org> <20000818230523.A2729@eldritchpress.org> <14749.64358.263678.23652@patris.bel-kwinith.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 "Robert S. Thau" wrote: > > Eric Eldred writes: > > > But what I was proposing was that we simply > > follow Judge Kaplan's stated proposal and do everything > > according to his way of thinking. Produce a DVD--but then > > issue a license that the user has the authority of the > > copyright holder to use DeCSS or LiViD or whatever other > > player or decryption technology she wants to. Then it > > would be up to DVD-CCA to sue *the content copyright > > holder*--for what? Violation of the license? Violating > > the secret contract with DVD-CCA? (I doubt it ever thought > > of such a thing.) "Trafficking" in some decryption technology > > that is issued *with* the authorization of the content copyright > > holder? Violation of the CSS patents or trade secrets? > > Fine, you issue the disk, and distribute LiVid as a way of viewing it. > You say you are distributing LiVid solely to allow viewing of your > disk. The MPAA sues, claiming that you are distributing LiVid as a > circumvention device, and that the disk is a mere pretext for doing > so. You then have to convince the court that allowing people to view > your disk is a legitimate purpose for distributing LiVid, so much so > that indeed, your constitutional rights have been violated if you are > unable to do so. How do you proceed? Don't provide LiVid. Just the disk. I can't watch the disk without LiViD. My Constitutional right to See/hear/read speech has been infringed. I want LiVid so I can know what is being said. Go after the right to hear free speech, not the right to produce it. Just provide the speech in a manner I cannot receive under the law and the law is itself a prior restraint of speech. ... -- Sphere. No permanence. No self. No perfection. From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 19 00:31:04 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA08296 for dvd-discuss-outgoing; Sat, 19 Aug 2000 00:31:04 -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 AAA08293 for ; Sat, 19 Aug 2000 00:30:52 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id AAA03047 for dvd-discuss@eon.law.harvard.edu; Sat, 19 Aug 2000 00:38:29 -0400 Date: Sat, 19 Aug 2000 00:38:24 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] introduction Message-ID: <20000819003823.A3008@eldritchpress.org> References: <20000818210635.A28207@lemuria.org> <14749.54628.362104.41193@patris.bel-kwinith.org> <20000818230523.A2729@eldritchpress.org> <00081820584301.26462@frankenstein.lumbercartel.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <00081820584301.26462@frankenstein.lumbercartel.com>; from dcs@mailhost.lumbercartel.com on Fri, Aug 18, 2000 at 08:53:35PM -0700 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, Aug 18, 2000 at 08:53:35PM -0700, D. C. Sessions wrote: > On Fri, 18 Aug 2000, Eric Eldred wrote: > > On Fri, Aug 18, 2000 at 09:15:10PM -0400, rst@alum.mit.edu wrote: > > > But what I was proposing was that we simply > > follow Judge Kaplan's stated proposal and do everything > > according to his way of thinking. Produce a DVD--but then > > issue a license that the user has the authority of the > > copyright holder to use DeCSS or LiViD or whatever other > > player or decryption technology she wants to. Then it > > would be up to DVD-CCA to sue *the content copyright > > holder*--for what? Violation of the license? Violating > > the secret contract with DVD-CCA? (I doubt it ever thought > > of such a thing.) "Trafficking" in some decryption technology > > that is issued *with* the authorization of the content copyright > > holder? Violation of the CSS patents or trade secrets? > > No, they sue for traficking in a device primarily used > for circumvention. They take no action whatever against the DVD > (obviously) but just sue the nads off of whoever provides the software. Provide the software (LiViD) with the disc and license to use it. Then they would have to restrain both. So far we can't say that LiViD itself is illegal even under Kaplan's rule, if the content copyright owner AUTHORIZES its use for that particular purpose. True, they might argue that LiViD might have another purpose. But that would be harder to prove than their arguments about "trafficking" alone. Here the intent, purpose, and primary use are all clear up front, and the authorization model is also clear as crystal. Microsoft's "copy" program in DOS can be used to copy software without authorization. PK-ZIP can be used to decrypt copyrighted software without authorization. Neither technology is illegal in itself. If we manage to get the case heard in the 5th circuit then we invoke Vault v Quaid, which ruled on exactly this point. The password cracking program had one use that was obviously fair--it allowed the software purchaser to make a backup copy. Indeed it also allowed other copies, not so legal. But since it had this *one* fair use it must be allowed. We need to plead before a court that DMCA and Universal v Corley do not overrule Vault v Quaid. And, indeed, they don't, because the anticircumvention clause is separate from the case where the software is provided with an intended use such as this. The legislative history is on our side on this point as well. We just have to bring up the case precisely enough so it is not considered as Corley's was. > The software provider could try to defend on the grounds that it had > another use, but the Court just finds that the other use is artificial > (using, perhaps, this list archive as evidence of intent) and of no > compelling economic weight compared to the overwhelming value > of copyrighted Hollywood content that it was obviously meant to rip. Fine. Then we have one copyright owner suing to suppress the work of another copyright owner, invoking copyright--to what? It is a *threat* vs *real* damage. > Remember, the statute doesn't require that the decryption mechanism > have NO other use, just that the weight of economic use not be legit. Exactly. This obtains if one considers only the technology in itself, not how it is used. So the program distributed to everybody to use in any way they wish is one thing. A program licensed to make it possible for a user to purchase a disc and view it on Linux is another. I say we isolate the issues and make it as clear as possible when we counterattack. -- "Eric" Eric Eldred Eldritch Press mailto:Eldred@EldritchPress.org http://www.eldritchpress.org/EricEldred.vcf From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 19 00:37:58 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA08374 for dvd-discuss-outgoing; Sat, 19 Aug 2000 00:37:58 -0400 Received: from prserv.net (out1.prserv.net [32.97.166.31]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id AAA08371 for ; Sat, 19 Aug 2000 00:37:57 -0400 Received: from patris.bel-kwinith.org ([32.100.55.99]) by prserv.net (out1) with SMTP id <2000081904370025201alo56e>; Sat, 19 Aug 2000 04:37:00 +0000 MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Date: Sat, 19 Aug 2000 00:36:59 -0400 (EDT) From: rst@alum.mit.edu To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Last thought on test cases... In-Reply-To: <14749.64358.263678.23652@patris.bel-kwinith.org> References: <20000818210635.A28207@lemuria.org> <200008181935.PAA10100@soggy-fibers.ai.mit.edu> <20000818172255.F1777@eldritchpress.org> <14749.54628.362104.41193@patris.bel-kwinith.org> <20000818230523.A2729@eldritchpress.org> <14749.64358.263678.23652@patris.bel-kwinith.org> X-Mailer: VM 6.43 under 20.4 "Emerald" XEmacs Lucid Message-ID: <14750.3187.106845.122940@patris.bel-kwinith.org> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Robert S. Thau writes: > Sigh... enough of test cases, certainly for tonight. It's fun, and > potentially enlightening, but the immediate problem is trying to win > the case we have. Let's not forget that. Well, I lied. One final thought: Kaplan has, as others have noted, pratically invited folks who feel a genuine chilling effect of the DMCA on their own fair use of CSS-encoded works to make a test case out of it. Off the top of my head, I can think of a couple of ways that, say, a library might be affected: 1) Inability to perform media-shifting, for purposes of displaying samples or for coursework. 2) Inability to view foreign-language titles which they had legitimately acquired at all, without burdensome and unnecessary purchases of additional equipment. And, as Ingo has already mentioned, we already have testimony from researchers on video processing on their own fair use of legitimately purchased works for research testing. But the law already recognizes special needs of libraries, to the point of exempting them from 1201(a) in some circumstances, so they might seem more sympathetic to whoever is judging the test case. I'm not really the person to flesh these out --- for one thing, the ins and outs of the fair use doctrine aren't something I know very well, and for another, you'd need someone who knows a lot more about the practical operation of libraries than I do to do a proper explanation of the harm to the libraries in, say, the cases I've suggested above. But I do think there's promise in this general direction, and that it may very well be the best way to pursue fair use claims in the long run. rst From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 19 00:41:12 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA08474 for dvd-discuss-outgoing; Sat, 19 Aug 2000 00:41:12 -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 AAA08471 for ; Sat, 19 Aug 2000 00:41:11 -0400 Received: from mediaone.net (h0060b03c5b8b.ne.mediaone.net [24.128.18.77]) by chmls06.mediaone.net (8.8.7/8.8.7) with ESMTP id AAA17825 for ; Sat, 19 Aug 2000 00:41:09 -0400 (EDT) Message-ID: <399E0FE6.4C6EF375@mediaone.net> Date: Sat, 19 Aug 2000 00:41:10 -0400 From: Sphere X-Mailer: Mozilla 4.73 [en] (WinNT; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] introduction References: <20000818210635.A28207@lemuria.org> <14749.54628.362104.41193@patris.bel-kwinith.org> <20000818230523.A2729@eldritchpress.org> <00081820584301.26462@frankenstein.lumbercartel.com> <20000819003823.A3008@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 Fri, Aug 18, 2000 at 08:53:35PM -0700, D. C. Sessions wrote: > > On Fri, 18 Aug 2000, Eric Eldred wrote: > > > On Fri, Aug 18, 2000 at 09:15:10PM -0400, rst@alum.mit.edu wrote: > > > > > But what I was proposing was that we simply > > > follow Judge Kaplan's stated proposal and do everything > > > according to his way of thinking. Produce a DVD--but then > > > issue a license that the user has the authority of the > > > copyright holder to use DeCSS or LiViD or whatever other > > > player or decryption technology she wants to. Then it > > > would be up to DVD-CCA to sue *the content copyright > > > holder*--for what? Violation of the license? Violating > > > the secret contract with DVD-CCA? (I doubt it ever thought > > > of such a thing.) "Trafficking" in some decryption technology > > > that is issued *with* the authorization of the content copyright > > > holder? Violation of the CSS patents or trade secrets? > > > > No, they sue for traficking in a device primarily used > > for circumvention. They take no action whatever against the DVD > > (obviously) but just sue the nads off of whoever provides the software. > > Provide the software (LiViD) with the disc and license to use it. > Then they would have to restrain both. So far we can't say that > LiViD itself is illegal even under Kaplan's rule, if the content > copyright owner AUTHORIZES its use for that particular purpose. Authorize, yes, but don't provide it. Make it so that the disk cannot be read unless LiViD is freely available. Freedom of speech has both a speaker and a listener, and it is my freedom to hear which is being totally ignored by Kaplan's decision, not your freedom to speak; which he pays at least a bit of lip service to. ... -- Sphere. No permanence. No self. No perfection. From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 19 01:01:12 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id BAA08654 for dvd-discuss-outgoing; Sat, 19 Aug 2000 01:01:12 -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 BAA08651 for ; Sat, 19 Aug 2000 01:01:10 -0400 Received: from ppp.anonymizer.com (c03-112.015.popsite.net [64.24.74.112]) by cyberpass.net (8.8.8/8.7.3) with ESMTP id WAA12817; Fri, 18 Aug 2000 22:03:16 -0700 (PDT) Message-Id: <4.3.2.7.2.20000818214009.04517920@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, 18 Aug 2000 22:00:55 -0700 To: dvd-discuss@eon.law.harvard.edu, dvd-discuss@eon.law.harvard.edu From: "James S. Tyre" Subject: Re: [dvd-discuss] california jurisdiction question In-Reply-To: <20000818232358.A10977@lemuria.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 11:23 PM 8/18/2000 +0200, Tom Vogt wrote: >someone here asked about the jurisdiction. I replied that I'm from germany. > >the DVD CCA lawyers have filed for an "entry of default", which is - as far >as I understand the matter - a bad thing. > >obviously, the whole case is ridiculous as far as it concerns me. what's >next? a peking court suing me because my webpage doesn't contain a chinese >translation? > >I found out that it can cost me around $10k to have a lawyer say basically >what I said above, namely that I'm outside the court's jurisdiction. >obviously, it's even more ridiculous to spend that kind of money on >something that is so silly it hurts. > >however, in order to avoid the entry of default, I'm pondering sending a >letter to the court, without involving a lawyer. Tom: You may wish to take what I say with a grain of salt, since, as you know, I am a lawyer, and not just that, I'm the one who thrust lemuria.org front and center into one of appellate briefs in the cp4break case. But then, I bet you enjoyed that. ;-) Your proposal makes perfect sense; which, inevitably, means that it will get you nowhere in the U.S. court systems. The court will not simply accept a letter from you. For one thing, it is hearsay, has no evidentiary value at all, according to the formalisms by which we are bound. At a very minimum, there must be a Declaration, which concludes with the magic incantation: "I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct and that this Declaration was executed in ___________, Germany on August __, 2000." (Followed by your signature.) But the declaration, and the accompanying legal memorandum, must be done in just such a way so as to ensure that you are *only* contesting the court's personal jurisdiction over you, and are not otherwise consenting to the court's jurisdiction. This is what is known as a "special appearance", and there are specific ways it must be done to avoid the Law of Unintended Consequences. But here's the real question: have you spoken with the lawyers representing the defendants, and have you seen the Motion to Quash ("squash" sometimes seems more appropriate, but it is "quash") which they have made on behalf of Matt Pavlovich, who is in the U.S., but not CA? The legal memorandum is here: http://www.eff.org/pub/Intellectual_property/Video/DVDCCA_case/20000802_pavlovich_quash_motion.html; if his accompanying Declaration is on the Net anywhere, I've not seen it. I cannot swear that they are doing this for Matt _pro bono_ (for free), but that would be my assumption. If I were you (meaning that I wouldn't be a lawyer, knowing pretty much exactly what to do, how to do it), I would talk to them, at least find out if they will do it for you gratis. And if for any reason they won't, you should talk to Robin Gross at EFF to see if they will. And you should do this soon, like yesterday. Obviously, I can't tell from your post what your relevant time frame is, but there are time limits in which this should be done. -Jim -------------------------------------------------------------------- James S. Tyre mailto:jstyre@jstyre.com 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 Aug 19 01:00:57 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id BAA08635 for dvd-discuss-outgoing; Sat, 19 Aug 2000 01:00:57 -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 BAA08632 for ; Sat, 19 Aug 2000 01:00:42 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id BAA03088 for dvd-discuss@eon.law.harvard.edu; Sat, 19 Aug 2000 01:08:19 -0400 Date: Sat, 19 Aug 2000 01:08:14 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Last thought on test cases... Message-ID: <20000819010814.B3008@eldritchpress.org> References: <20000818210635.A28207@lemuria.org> <200008181935.PAA10100@soggy-fibers.ai.mit.edu> <20000818172255.F1777@eldritchpress.org> <14749.54628.362104.41193@patris.bel-kwinith.org> <20000818230523.A2729@eldritchpress.org> <14749.64358.263678.23652@patris.bel-kwinith.org> <14750.3187.106845.122940@patris.bel-kwinith.org> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <14750.3187.106845.122940@patris.bel-kwinith.org>; from rst@alum.mit.edu on Sat, Aug 19, 2000 at 12:36:59AM -0400 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sat, Aug 19, 2000 at 12:36:59AM -0400, rst@alum.mit.edu wrote: > Robert S. Thau writes: > > Sigh... enough of test cases, certainly for tonight. It's fun, and > > potentially enlightening, but the immediate problem is trying to win > > the case we have. Let's not forget that. > > Well, I lied. One final thought: > > Kaplan has, as others have noted, pratically invited folks who feel a > genuine chilling effect of the DMCA on their own fair use of > CSS-encoded works to make a test case out of it. Off the top of my > head, I can think of a couple of ways that, say, a library might be > affected: > > 1) Inability to perform media-shifting, for purposes of displaying > samples or for coursework. > > 2) Inability to view foreign-language titles which they had > legitimately acquired at all, without burdensome and unnecessary > purchases of additional equipment. The problem might be that the library exception is very specific, to allow the library to circumvent only in the case they wish to evaluate the disc for purchase. And again that exception does not say anything about us distributing DeCSS to them. Again, Kaplan can say that Congress already did this balancing with fair use. There is another method, perhaps a bit circuitous. Gather some films that were made in Hollywood in the year 1923 and that were renewed copyright 28 years after. Make sure none of the films is still in print and that none has any significant commercial value, though historical value may be there. Since the companies that produced the films no longer exist, the films are "orphan" and nobody is likely to sue us for copyright infringement (or, if so, for peanuts). Digitize these films and encode them with CSS onto a DVD. Under the Copyright Term Extension Act, libraries and archives have special privileges to reprint works in their last year of copyright, as long as the copyright owner has not registered a commercial interest to the work, with the Registrar of Copyrights. Regular citizens like you and me don't have the rights under copyright law to reprint these "orphan" works. But libraries and archives do. So arrange that a friendly library decrypt the DVD with DeCSS and then communicate with other libraries how to do this, and how to produce copies of the videos. If they feel that Kaplan's ruling prevents them from doing so, invite them to join our appeal. ... > But the law already recognizes special needs of libraries, to the > point of exempting them from 1201(a) in some circumstances, so they > might seem more sympathetic to whoever is judging the test case. Too, it's not likely that a court would rule that the DMCA (passed in October 1998) overrules CTEA (passed almost at the same time). Now I too head for bed. Sorry to bring up yet another test case, but tomorrow I will seriously work on the decision and appeal of this one. -- "Eric" Eric Eldred Eldritch Press mailto:Eldred@EldritchPress.org http://www.eldritchpress.org/EricEldred.vcf From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 19 02:22:54 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id CAA08852 for dvd-discuss-outgoing; Sat, 19 Aug 2000 02:22:54 -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 CAA08849 for ; Sat, 19 Aug 2000 02:22:53 -0400 Received: (qmail 29213 invoked by uid 60001); 19 Aug 2000 06:22:51 -0000 Message-ID: <20000819062251.29212.qmail@web116.yahoomail.com> Received: from [128.122.253.144] by web116.yahoomail.com; Fri, 18 Aug 2000 23:22:51 PDT Date: Fri, 18 Aug 2000 23:22:51 -0700 (PDT) From: "Tuyet A. Ngoc Tran" Subject: [dvd-discuss] news To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Hollywood Wins DVD-Copy Case http://www.thestandard.com/article/display/0,1151,17790,00.html?nl=mg Movie Industry Wins a Round in DVD Copyright Case http://www.nytimes.com/library/tech/00/08/biztech/articles/18dvd.html (Registration required.) DeCSS Ruling: Free Speech at Stake http://www.zdnet.com/zdnn/stories/news/0,4586,2616841,00.html Judge in DVD-Hacker Trial Rules in Favor of Movie Studios http://www.inside.com/story/Story_Cached/0,2770,8375_7_4_1,00.html Studios Backed in DVD Piracy Suit http://cbs.marketwatch.com/news/current/media.htx 2600 Loses MPAA Lawsuit - Appeal Planned http://www.2600.com/news/2000/0817.html Movie Industry Wins DVD Lawsuit (AP) http://www.salon.com/tech/wire/2000/08/17/decss/index.html Digital Copyright Act Comes Back to Haunt Consumers http://www.sjmercury.com/svtech/columns/gillmor/docs/dg081800.htm Film Industry Wins in DVD Ruling http://www.sjmercury.com/svtech/news/top/docs/dvd081800.htm Studios Score DeCSS Victory http://www.wired.com/news/politics/0,1283,38287,00.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 Sat Aug 19 06:36:54 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id GAA09995 for dvd-discuss-outgoing; Sat, 19 Aug 2000 06:36:54 -0400 Received: from mail.lemuria.org (lemuria.borgfelde.ricardo.de [195.244.103.65]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id GAA09988 for ; Sat, 19 Aug 2000 06:36:52 -0400 Received: from lemuria.org by mail.lemuria.org via rsmtp with bsmtp id for ; Sat, 19 Aug 2000 12:29:42 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Received: by lemuria.org via sendmail with stdio id for dvd-discuss@eon.law.harvard.edu; Sat, 19 Aug 2000 11:22:23 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Date: Sat, 19 Aug 2000 11:22:23 +0200 From: Tom Vogt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] introduction Message-ID: <20000819112223.B13560@lemuria.org> References: <20000818210635.A28207@lemuria.org> <14749.54628.362104.41193@patris.bel-kwinith.org> <20000818230523.A2729@eldritchpress.org> <00081820584301.26462@frankenstein.lumbercartel.com> <20000819003823.A3008@eldritchpress.org> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0pre3i In-Reply-To: <20000819003823.A3008@eldritchpress.org> X-Privacy: If you can, please encrypt your mails - finger for key Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Eric Eldred wrote: > Exactly. This obtains if one considers only the technology in > itself, not how it is used. So the program distributed to > everybody to use in any way they wish is one thing. A program > licensed to make it possible for a user to purchase a disc > and view it on Linux is another. I say we isolate the issues > and make it as clear as possible when we counterattack. a content that is primarily of interest to Linux users (say, an RMS rant as proposed) could strengthen the point that we need to include a software that does DVD playback on Linux. and one that does it NOW, not a vaporware announcement. -- "The net treats censorship as a malfunction and re-routes around it." (John Gilmore) From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 19 06:36:55 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id GAA10003 for dvd-discuss-outgoing; Sat, 19 Aug 2000 06:36:55 -0400 Received: from mail.lemuria.org (lemuria.borgfelde.ricardo.de [195.244.103.65]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id GAA09996 for ; Sat, 19 Aug 2000 06:36:54 -0400 Received: from lemuria.org by mail.lemuria.org via rsmtp with bsmtp id for ; Sat, 19 Aug 2000 12:29:42 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Received: by lemuria.org via sendmail with stdio id for dvd-discuss@eon.law.harvard.edu; Sat, 19 Aug 2000 11:46:40 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Date: Sat, 19 Aug 2000 11:46:40 +0200 From: Tom Vogt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] introduction Message-ID: <20000819114640.C13560@lemuria.org> References: <20000818210635.A28207@lemuria.org> <200008181935.PAA10100@soggy-fibers.ai.mit.edu> <20000818172255.F1777@eldritchpress.org> <14749.54628.362104.41193@patris.bel-kwinith.org> <20000818230523.A2729@eldritchpress.org> <14749.64358.263678.23652@patris.bel-kwinith.org> <399E0B67.3739B344@mediaone.net> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0pre3i In-Reply-To: <399E0B67.3739B344@mediaone.net> X-Privacy: If you can, please encrypt your mails - finger for key Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Sphere wrote: > Go after the right to hear free speech, not > the right to produce it. Just provide the > speech in a manner I cannot receive under > the law and the law is itself a prior > restraint of speech. so all we need is a content producer's ok to use DeCSS to view his copyrightes works, right? if Unknown Studios includes a note in their booklets that says "you are hereby authorized to decrypt and store parts or all of this movie on your harddisk for personal use ONLY. you are allowed to use tools such as DeCSS to do this." then we're clean? after all, if the CSS license disallows it, the CSS license scheme is a prior restraint of speech. if I'm not gone bonkers here, that means we don't have to produce a DVD, we just have to get a single, however small, DVD content producer on our side. -- "The net treats censorship as a malfunction and re-routes around it." (John Gilmore) From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 19 06:36:57 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id GAA10011 for dvd-discuss-outgoing; Sat, 19 Aug 2000 06:36:57 -0400 Received: from mail.lemuria.org (lemuria.borgfelde.ricardo.de [195.244.103.65]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id GAA10006 for ; Sat, 19 Aug 2000 06:36:56 -0400 Received: from lemuria.org by mail.lemuria.org via rsmtp with bsmtp id for ; Sat, 19 Aug 2000 12:29:42 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Received: by lemuria.org via sendmail with stdio id for dvd-discuss@eon.law.harvard.edu; Sat, 19 Aug 2000 12:04:28 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Date: Sat, 19 Aug 2000 12:04:28 +0200 From: Tom Vogt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] code as speech Message-ID: <20000819120428.D13560@lemuria.org> References: <20000819023146.F12126@lemuria.org> <399DFA22.E012A136@mediaone.net> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0pre3i In-Reply-To: <399DFA22.E012A136@mediaone.net> X-Privacy: If you can, please encrypt your mails - finger for key Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Sphere wrote: > My first reaction is that for the people > who have neither programming skills nor > know german you might as well have been > speaking in german. sorry, I'll try to be more clear: you have an input file that is, say, the US constitution. you have a second file that is, say, decss you have a simple program (6 lines or so) using the program, you can re-arrange (as in a photo collage, or a music remix) the constitution, using decss as a "pattern". the output will consist entirely of lines from the constitution, repeated and re-sorted, but 100% pure US constitution. so you now have: the same old US constitution another simple program, just the opposite of the other one a re-mixed US constitution using the program, you can turn the re-mixed constitution into decss. the point is that this definitely blurs any and all destinctions between code and speech. for example, if the program were longer (which can be arranged by re-writing it in a more verbose programming language) it can be used as both, software and pattern, turning decss into a re-mixed version of itself. it can even be used as all three, turning itself into a re-mix of itself. sorry, I guess I'm not that much clearer. here's an example: the single word "DeCSS" can, using the US constitution as the pattern, become: States. their Judgment require Secrecy; and the Yeas and Nays of the when he shall exercise the Office of President of the United Legislature thereof; but the Congress may at any time by Law Legislature thereof; but the Congress may at any time by Law you can encode ANYTHING in this way, including binary data (pictures, movies or music). -- "The net treats censorship as a malfunction and re-routes around it." (John Gilmore) From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 19 06:36:59 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id GAA10019 for dvd-discuss-outgoing; Sat, 19 Aug 2000 06:36:59 -0400 Received: from mail.lemuria.org (lemuria.borgfelde.ricardo.de [195.244.103.65]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id GAA10015 for ; Sat, 19 Aug 2000 06:36:58 -0400 Received: from lemuria.org by mail.lemuria.org via rsmtp with bsmtp id for ; Sat, 19 Aug 2000 12:29:42 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Received: by lemuria.org via sendmail with stdio id for dvd-discuss@eon.law.harvard.edu; Sat, 19 Aug 2000 12:08:13 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Date: Sat, 19 Aug 2000 12:08:13 +0200 From: Tom Vogt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] code as speech Message-ID: <20000819120813.E13560@lemuria.org> References: <20000819023146.F12126@lemuria.org> <20000818233016.C2729@eldritchpress.org> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0pre3i In-Reply-To: <20000818233016.C2729@eldritchpress.org> X-Privacy: If you can, please encrypt your mails - finger for key Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Eric Eldred wrote: > Isn't this idea very similar to the ideas of > Publius and other distributed, scrambled systems? in a way. I was inspired by a program on the web that turns source code into english poems. my main goal was a more general approach. I wanted to handle binary data, too and I wanted to not be restricted to one specifc pattern (english poem with a limited set of words in this case). > My question is then how can we tell what the legal > status of this process is? The other examples of > distributed file sharing have not been tested in > court to my knowledge. as I said: I'm looking forward to the DVD CCA filing an injunction against their own legal documents. :) -- "The net treats censorship as a malfunction and re-routes around it." (John Gilmore) From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 19 06:37:01 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id GAA10026 for dvd-discuss-outgoing; Sat, 19 Aug 2000 06:37:01 -0400 Received: from mail.lemuria.org (lemuria.borgfelde.ricardo.de [195.244.103.65]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id GAA10020 for ; Sat, 19 Aug 2000 06:36:59 -0400 Received: from lemuria.org by mail.lemuria.org via rsmtp with bsmtp id for ; Sat, 19 Aug 2000 12:29:42 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Received: by lemuria.org via sendmail with stdio id for dvd-discuss@eon.law.harvard.edu; Sat, 19 Aug 2000 12:18:18 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Date: Sat, 19 Aug 2000 12:18:18 +0200 From: Tom Vogt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] california jurisdiction question Message-ID: <20000819121817.F13560@lemuria.org> References: <20000818232358.A10977@lemuria.org> <4.3.2.7.2.20000818214009.04517920@127.0.0.1> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0pre3i In-Reply-To: <4.3.2.7.2.20000818214009.04517920@127.0.0.1> X-Privacy: If you can, please encrypt your mails - finger for key Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu "James S. Tyre" wrote: > You may wish to take what I say with a grain of salt, since, as you know, I > am a lawyer, and not just that, I'm the one who thrust lemuria.org front > and center into one of appellate briefs in the cp4break case. But then, I > bet you enjoyed that. ;-) kind of. I don't believe in information suppression, so I'm always happy to fight it. if you want to keep something secret, then do your homework and don't rely on stupid idiocities such as obscurity. > Your proposal makes perfect sense; which, inevitably, means that it will > get you nowhere in the U.S. court systems. The court will not simply > accept a letter from you. For one thing, it is hearsay, has no evidentiary > value at all, according to the formalisms by which we are bound. At a very > minimum, there must be a Declaration, which concludes with the magic > incantation: > > "I declare under penalty of perjury under the laws of the State of > California that the foregoing is true and correct and that this Declaration > was executed in ___________, Germany on August __, 2000." (Followed by > your signature.) > > But the declaration, and the accompanying legal memorandum, must be done in > just such a way so as to ensure that you are *only* contesting the court's > personal jurisdiction over you, and are not otherwise consenting to the > court's jurisdiction. This is what is known as a "special appearance", and > there are specific ways it must be done to avoid the Law of Unintended > Consequences. I heard that phrase before. I didn't want to include it in the letter because it might create the wrong impression that I know exactly what I'm talking about. > But here's the real question: have you spoken with the lawyers representing > the defendants, and have you seen the Motion to Quash ("squash" sometimes [...] > I cannot swear that they are doing this for Matt _pro bono_ (for free), but > that would be my assumption. If I were you (meaning that I wouldn't be a > lawyer, knowing pretty much exactly what to do, how to do it), I would talk > to them, at least find out if they will do it for you gratis. And if for > any reason they won't, you should talk to Robin Gross at EFF to see if they > will. I'm in contact with matt and have volunteered to support him financially since his lawyer is NOT doing this pro bono. robin said she'd be looking for someone who might, but so far no luck. > And you should do this soon, like yesterday. Obviously, I can't tell from > your post what your relevant time frame is, but there are time limits in > which this should be done. 30 days after being served. which means I have to get this out quickly. -- "The net treats censorship as a malfunction and re-routes around it." (John Gilmore) From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 19 06:36:52 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id GAA09987 for dvd-discuss-outgoing; Sat, 19 Aug 2000 06:36:52 -0400 Received: from mail.lemuria.org (lemuria.borgfelde.ricardo.de [195.244.103.65]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id GAA09983 for ; Sat, 19 Aug 2000 06:36:51 -0400 Received: from lemuria.org by mail.lemuria.org via rsmtp with bsmtp id for ; Sat, 19 Aug 2000 12:29:41 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Received: by lemuria.org via sendmail with stdio id for dvd-discuss@eon.law.harvard.edu; Sat, 19 Aug 2000 11:19:45 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Date: Sat, 19 Aug 2000 11:19:45 +0200 From: Tom Vogt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] introduction Message-ID: <20000819111945.A13560@lemuria.org> References: <20000818210635.A28207@lemuria.org> <14749.54628.362104.41193@patris.bel-kwinith.org> <20000818230523.A2729@eldritchpress.org> <00081820584301.26462@frankenstein.lumbercartel.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0pre3i In-Reply-To: <00081820584301.26462@frankenstein.lumbercartel.com> X-Privacy: If you can, please encrypt your mails - finger for key Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu "D. C. Sessions" wrote: > compelling economic weight compared to the overwhelming value > of copyrighted Hollywood content that it was obviously meant to rip. produce a version of decss that will ONLY decrypt this DVD. after all, decss was originally created as a stepping stone, not a finished product. of course, the GPL license and source code means some people will be able to turn it into a general ripper. but the same holds true for xing player and it's not illegal. -- "The net treats censorship as a malfunction and re-routes around it." (John Gilmore) From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 19 08:15:42 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id IAA10768 for dvd-discuss-outgoing; Sat, 19 Aug 2000 08:15:42 -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 IAA10765 for ; Sat, 19 Aug 2000 08:15:41 -0400 Received: from jy01 (user-2inig0d.dialup.mindspring.com [165.121.64.13]) by tisch.mail.mindspring.net (8.9.3/8.8.5) with SMTP id IAA19563 for ; Sat, 19 Aug 2000 08:15:40 -0400 (EDT) Message-Id: <200008191215.IAA19563@tisch.mail.mindspring.net> X-Sender: jya@pop.pipeline.com X-Mailer: QUALCOMM Windows Eudora Pro Version 4.0 Date: Sat, 19 Aug 2000 08:09:20 -0400 To: dvd-discuss@eon.law.harvard.edu From: John Young Subject: Re: [dvd-discuss] california jurisdiction question In-Reply-To: <20000819121817.F13560@lemuria.org> References: <4.3.2.7.2.20000818214009.04517920@127.0.0.1> <20000818232358.A10977@lemuria.org> <4.3.2.7.2.20000818214009.04517920@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 James Tyre offers sound legal advice. Still, no offense meant to Jim, there is the tar baby consequences of obeying such advice. You might come out clean, or you might be covered with more tar than you ever dreamed as a result of thinking it's only a small black gob that's the problem, not knowing it could be a tip of much worse. Buying into the means to get rid of that small gob could doom you to struggling out of a tar pit. Use common sense: avoid the law, avoid the pit. In the US the pit is huge and growing rapidly. From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 19 09:45:11 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA11699 for dvd-discuss-outgoing; Sat, 19 Aug 2000 09:45:11 -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 JAA11696 for ; Sat, 19 Aug 2000 09:45:10 -0400 Received: from mediaone.net (h0060b03c5b8b.ne.mediaone.net [24.128.18.77]) by chmls05.mediaone.net (8.8.7/8.8.7) with ESMTP id JAA09845 for ; Sat, 19 Aug 2000 09:45:09 -0400 (EDT) Message-ID: <399E8F66.22196805@mediaone.net> Date: Sat, 19 Aug 2000 09:45:10 -0400 From: Sphere X-Mailer: Mozilla 4.73 [en] (WinNT; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] california jurisdiction question References: <20000818232358.A10977@lemuria.org> <4.3.2.7.2.20000818214009.04517920@127.0.0.1> <20000819121817.F13560@lemuria.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 Tom Vogt wrote: > > "James S. Tyre" wrote: > > You may wish to take what I say with a grain of salt, since, as you know, I > > am a lawyer, and not just that, I'm the one who thrust lemuria.org front > > and center into one of appellate briefs in the cp4break case. But then, I > > bet you enjoyed that. ;-) > > kind of. I don't believe in information suppression, so I'm always happy to > fight it. if you want to keep something secret, then do your homework and > don't rely on stupid idiocities such as obscurity. > > > Your proposal makes perfect sense; which, inevitably, means that it will > > get you nowhere in the U.S. court systems. The court will not simply > > accept a letter from you. For one thing, it is hearsay, has no evidentiary > > value at all, according to the formalisms by which we are bound. At a very > > minimum, there must be a Declaration, which concludes with the magic > > incantation: > > > > "I declare under penalty of perjury under the laws of the State of > > California that the foregoing is true and correct and that this Declaration > > was executed in ___________, Germany on August __, 2000." (Followed by > > your signature.) > > > > But the declaration, and the accompanying legal memorandum, must be done in > > just such a way so as to ensure that you are *only* contesting the court's > > personal jurisdiction over you, and are not otherwise consenting to the > > court's jurisdiction. This is what is known as a "special appearance", and > > there are specific ways it must be done to avoid the Law of Unintended > > Consequences. > > I heard that phrase before. I didn't want to include it in the letter > because it might create the wrong impression that I know exactly what I'm > talking about. > > > But here's the real question: have you spoken with the lawyers representing > > the defendants, and have you seen the Motion to Quash ("squash" sometimes > [...] > > I cannot swear that they are doing this for Matt _pro bono_ (for free), but > > that would be my assumption. If I were you (meaning that I wouldn't be a > > lawyer, knowing pretty much exactly what to do, how to do it), I would talk > > to them, at least find out if they will do it for you gratis. And if for > > any reason they won't, you should talk to Robin Gross at EFF to see if they > > will. > > I'm in contact with matt and have volunteered to support him financially > since his lawyer is NOT doing this pro bono. robin said she'd be looking > for someone who might, but so far no luck. > > > And you should do this soon, like yesterday. Obviously, I can't tell from > > your post what your relevant time frame is, but there are time limits in > > which this should be done. > > 30 days after being served. which means I have to get this out quickly. You might want to find out if there is anything you should be doing now under German law so that nothing the MPAA and friends gets out of the U.S. court system can have any meaning in Germany. Maybe you simply ignore the Califoria Court completely, and simply complain to your own government about being harassed by a legal system which clearly has no juristiction. If the right button can be found to make an international stink out of this then it is probably to the good. > -- > "The net treats censorship as a malfunction and re-routes around it." > (John Gilmore) -- Sphere. No permanence. No self. No perfection. From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 19 09:56:47 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA12070 for dvd-discuss-outgoing; Sat, 19 Aug 2000 09:56:47 -0400 Received: from mail.lemuria.org (lemuria.borgfelde.ricardo.de [195.244.103.65]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id JAA12067 for ; Sat, 19 Aug 2000 09:56:45 -0400 Received: from lemuria.org by mail.lemuria.org via rsmtp with bsmtp id for ; Sat, 19 Aug 2000 15:50:19 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Received: by lemuria.org via sendmail with stdio id for dvd-discuss@eon.law.harvard.edu; Sat, 19 Aug 2000 15:27:27 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Date: Sat, 19 Aug 2000 15:27:26 +0200 From: Tom Vogt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] california jurisdiction question Message-ID: <20000819152726.A14291@lemuria.org> References: <4.3.2.7.2.20000818214009.04517920@127.0.0.1> <20000818232358.A10977@lemuria.org> <4.3.2.7.2.20000818214009.04517920@127.0.0.1> <20000819121817.F13560@lemuria.org> <200008191215.IAA19563@tisch.mail.mindspring.net> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0pre3i In-Reply-To: <200008191215.IAA19563@tisch.mail.mindspring.net> X-Privacy: If you can, please encrypt your mails - finger for key Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu John Young wrote: > Use common sense: avoid the law, avoid the pit. > In the US the pit is huge and growing rapidly. I think I've made up my mind by now: it's simply insane to fight this court battle in california for me. even if I had money to burn I don't think it would be the right thing to do. I do, however, wish to not stay completely silent. so I believe a challenge to the jurisdiction that satisfies the minimal formal requirements to be heard is acceptable to me. -- "The net treats censorship as a malfunction and re-routes around it." (John Gilmore) From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 19 09:56:43 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA12062 for dvd-discuss-outgoing; Sat, 19 Aug 2000 09:56:43 -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 JAA12059 for ; Sat, 19 Aug 2000 09:56:43 -0400 Received: from mediaone.net (h0060b03c5b8b.ne.mediaone.net [24.128.18.77]) by chmls05.mediaone.net (8.8.7/8.8.7) with ESMTP id JAA13524 for ; Sat, 19 Aug 2000 09:56:42 -0400 (EDT) Message-ID: <399E921A.A9F88EE8@mediaone.net> Date: Sat, 19 Aug 2000 09:56:42 -0400 From: Sphere X-Mailer: Mozilla 4.73 [en] (WinNT; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] code as speech References: <20000819023146.F12126@lemuria.org> <399DFA22.E012A136@mediaone.net> <20000819120428.D13560@lemuria.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 Tom Vogt wrote: > > Sphere wrote: > > My first reaction is that for the people > > who have neither programming skills nor > > know german you might as well have been > > speaking in german. > > sorry, I'll try to be more clear: > > you have an input file that is, say, the US constitution. > you have a second file that is, say, decss > you have a simple program (6 lines or so) > > using the program, you can re-arrange (as in a photo collage, or a music > remix) the constitution, using decss as a "pattern". the output will > consist entirely of lines from the constitution, repeated and re-sorted, > but 100% pure US constitution. > > so you now have: > > the same old US constitution > another simple program, just the opposite of the other one > a re-mixed US constitution > > using the program, you can turn the re-mixed constitution into decss. I'm reminded of binary nerve gas here. Neither part is dangerous but when combined... :) It shouldn't be too hard to put together an executable which isn't DeCSS itself, but when provided a key, such as the first amendment, spits out the DeCSS executable. I'm sure it would be labelled a device for circumventtion, but it would certainly confuse the legal system in the process. Name the program Kaplan. > the point is that this definitely blurs any and all destinctions between > code and speech. for example, if the program were longer (which can be > arranged by re-writing it in a more verbose programming language) it can be > used as both, software and pattern, turning decss into a re-mixed version > of itself. it can even be used as all three, turning itself into a re-mix > of itself. > > sorry, I guess I'm not that much clearer. here's an example: the single > word "DeCSS" can, using the US constitution as the pattern, become: > > States. > their Judgment require Secrecy; and the Yeas and Nays of the > when he shall exercise the Office of President of the United > Legislature thereof; but the Congress may at any time by Law > Legislature thereof; but the Congress may at any time by Law > > you can encode ANYTHING in this way, including binary data (pictures, > movies or music). > > -- > "The net treats censorship as a malfunction and re-routes around it." > (John Gilmore) -- Sphere. No permanence. No self. No perfection. From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 19 09:58:06 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA12187 for dvd-discuss-outgoing; Sat, 19 Aug 2000 09:58:06 -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 JAA12184 for ; Sat, 19 Aug 2000 09:58:05 -0400 Received: from mediaone.net (h0060b03c5b8b.ne.mediaone.net [24.128.18.77]) by chmls05.mediaone.net (8.8.7/8.8.7) with ESMTP id JAA13927 for ; Sat, 19 Aug 2000 09:58:04 -0400 (EDT) Message-ID: <399E926D.E1A9AA4C@mediaone.net> Date: Sat, 19 Aug 2000 09:58:05 -0400 From: Sphere X-Mailer: Mozilla 4.73 [en] (WinNT; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] introduction References: <20000818210635.A28207@lemuria.org> <200008181935.PAA10100@soggy-fibers.ai.mit.edu> <20000818172255.F1777@eldritchpress.org> <14749.54628.362104.41193@patris.bel-kwinith.org> <20000818230523.A2729@eldritchpress.org> <14749.64358.263678.23652@patris.bel-kwinith.org> <399E0B67.3739B344@mediaone.net> <20000819114640.C13560@lemuria.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 Tom Vogt wrote: > > Sphere wrote: > > Go after the right to hear free speech, not > > the right to produce it. Just provide the > > speech in a manner I cannot receive under > > the law and the law is itself a prior > > restraint of speech. > > so all we need is a content producer's ok to use DeCSS to view his > copyrightes works, right? The "right" we'll need a legal opinion on. Common sense doesn't work in this field. > if Unknown Studios includes a note in their booklets that says "you are > hereby authorized to decrypt and store parts or all of this movie on your > harddisk for personal use ONLY. you are allowed to use tools such as DeCSS > to do this." then we're clean? > > after all, if the CSS license disallows it, the CSS license scheme is a > prior restraint of speech. > > if I'm not gone bonkers here, that means we don't have to produce a DVD, we > just have to get a single, however small, DVD content producer on our side. > > -- > "The net treats censorship as a malfunction and re-routes around it." > (John Gilmore) -- Sphere. No permanence. No self. No perfection. From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 19 10:13:45 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA12371 for dvd-discuss-outgoing; Sat, 19 Aug 2000 10:13:45 -0400 Received: from smtp03.primenet.com (smtp03.primenet.com [206.165.6.133]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id KAA12360 for ; Sat, 19 Aug 2000 10:13:39 -0400 Received: (from daemon@localhost) by smtp03.primenet.com (8.9.3/8.9.3) id HAA01437 for ; Sat, 19 Aug 2000 07:12:36 -0700 (MST) Received: from sessions.phx.primenet.com(206.132.239.114), claiming to be "heorot.lumbercartel.com" via SMTP by smtp03.primenet.com, id smtpdAAAMcayYc; Sat Aug 19 07:12:31 2000 Received: from frankenstein.lumbercartel.com (IDENT:dcs@frankenstein.lumbercartel.com [192.168.6.2]) by heorot.lumbercartel.com (8.9.3/8.8.7) with SMTP id HAA05388 for ; Sat, 19 Aug 2000 07:13:14 -0700 From: "D. C. Sessions" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] introduction Date: Sat, 19 Aug 2000 06:40:50 -0700 X-Mailer: KMail [version 1.0.29] Content-Type: text/plain References: <20000818210635.A28207@lemuria.org> <00081820584301.26462@frankenstein.lumbercartel.com> <20000819111945.A13560@lemuria.org> In-Reply-To: <20000819111945.A13560@lemuria.org> MIME-Version: 1.0 Message-Id: <00081906453000.27287@frankenstein.lumbercartel.com> Content-Transfer-Encoding: 8bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sat, 19 Aug 2000, Tom Vogt wrote: > "D. C. Sessions" wrote: > > compelling economic weight compared to the overwhelming value > > of copyrighted Hollywood content that it was obviously meant to rip. > > produce a version of decss that will ONLY decrypt this DVD. after all, > decss was originally created as a stepping stone, not a finished product. > > of course, the GPL license and source code means some people will be able > to turn it into a general ripper. but the same holds true for xing player > and it's not illegal. Nice touch -- if we were dealing with something a little more fine-grained than the law it would be a wonderful step down the slippery slope. The Court would have to choose between letting the genie out officially or banning a *technology* rather than a *mechanism* -- which would require some pretty creative reading of both the statute and the Constitution. Especially since the technology in question is indistinguishable from that in the licensed players, this amounts to perpetual patent without any of the usual scrutiny over novely, etc. -- | Microsoft: "A reputation for releasing inferior software will make | | it more difficult for a software vendor to induce customers to pay | | for new products or new versions of existing products." | +----------- D. C. & M. V. Sessions ----------+ From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 19 10:13:48 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA12379 for dvd-discuss-outgoing; Sat, 19 Aug 2000 10:13:48 -0400 Received: from smtp04.primenet.com (smtp04.primenet.com [206.165.6.134]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id KAA12376 for ; Sat, 19 Aug 2000 10:13:46 -0400 Received: (from daemon@localhost) by smtp04.primenet.com (8.9.3/8.9.3) id HAA23619 for ; Sat, 19 Aug 2000 07:11:55 -0700 (MST) Received: from sessions.phx.primenet.com(206.132.239.114), claiming to be "heorot.lumbercartel.com" via SMTP by smtp04.primenet.com, id smtpdAAA3YaGeU; Sat Aug 19 07:11:44 2000 Received: from frankenstein.lumbercartel.com (IDENT:dcs@frankenstein.lumbercartel.com [192.168.6.2]) by heorot.lumbercartel.com (8.9.3/8.8.7) with SMTP id HAA05436 for ; Sat, 19 Aug 2000 07:13:30 -0700 From: "D. C. Sessions" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] introduction Date: Sat, 19 Aug 2000 06:50:04 -0700 X-Mailer: KMail [version 1.0.29] Content-Type: text/plain References: <20000818210635.A28207@lemuria.org> <14749.64358.263678.23652@patris.bel-kwinith.org> <399E0B67.3739B344@mediaone.net> In-Reply-To: <399E0B67.3739B344@mediaone.net> MIME-Version: 1.0 Message-Id: <00081906523901.27287@frankenstein.lumbercartel.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, 18 Aug 2000, Sphere wrote: > Don't provide LiVid. Just the disk. I can't > watch the disk without LiViD. My Constitutional > right to See/hear/read speech has been infringed. > I want LiVid so I can know what is being said. > > Go after the right to hear free speech, not > the right to produce it. Just provide the > speech in a manner I cannot receive under > the law and the law is itself a prior > restraint of speech. [DA] The author shouldn't have required an illegal instrument for access to the content then. Publishing a book in an invisible ink which requires a heroin solution to become readable doesn't bring heroin under the First Amendment. -- | Microsoft: "A reputation for releasing inferior software will make | | it more difficult for a software vendor to induce customers to pay | | for new products or new versions of existing products." | +----------- D. C. & M. V. Sessions ----------+ From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 19 10:13:43 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA12367 for dvd-discuss-outgoing; Sat, 19 Aug 2000 10:13:43 -0400 Received: from smtp02.primenet.com (smtp02.primenet.com [206.165.6.132]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id KAA12364 for ; Sat, 19 Aug 2000 10:13:42 -0400 Received: (from daemon@localhost) by smtp02.primenet.com (8.9.3/8.9.3) id HAA19474 for ; Sat, 19 Aug 2000 07:11:38 -0700 (MST) Received: from sessions.phx.primenet.com(206.132.239.114), claiming to be "heorot.lumbercartel.com" via SMTP by smtp02.primenet.com, id smtpdAAAYiaq.L; Sat Aug 19 07:11:29 2000 Received: from frankenstein.lumbercartel.com (IDENT:dcs@frankenstein.lumbercartel.com [192.168.6.2]) by heorot.lumbercartel.com (8.9.3/8.8.7) with SMTP id HAA05439 for ; Sat, 19 Aug 2000 07:13:31 -0700 From: "D. C. Sessions" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] introduction Date: Sat, 19 Aug 2000 06:53:32 -0700 X-Mailer: KMail [version 1.0.29] Content-Type: text/plain References: <20000818210635.A28207@lemuria.org> <00081820584301.26462@frankenstein.lumbercartel.com> <20000819003823.A3008@eldritchpress.org> In-Reply-To: <20000819003823.A3008@eldritchpress.org> MIME-Version: 1.0 Message-Id: <00081907123002.27287@frankenstein.lumbercartel.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, 18 Aug 2000, Eric Eldred wrote: > On Fri, Aug 18, 2000 at 08:53:35PM -0700, D. C. Sessions wrote: > > On Fri, 18 Aug 2000, Eric Eldred wrote: > > > On Fri, Aug 18, 2000 at 09:15:10PM -0400, rst@alum.mit.edu wrote: > > > > > But what I was proposing was that we simply > > > follow Judge Kaplan's stated proposal and do everything > > > according to his way of thinking. Produce a DVD--but then > > > issue a license that the user has the authority of the > > > copyright holder to use DeCSS or LiViD or whatever other > > > player or decryption technology she wants to. Then it > > > would be up to DVD-CCA to sue *the content copyright > > > holder*--for what? Violation of the license? Violating > > > the secret contract with DVD-CCA? (I doubt it ever thought > > > of such a thing.) "Trafficking" in some decryption technology > > > that is issued *with* the authorization of the content copyright > > > holder? Violation of the CSS patents or trade secrets? > > > > No, they sue for traficking in a device primarily used > > for circumvention. They take no action whatever against the DVD > > (obviously) but just sue the nads off of whoever provides the software. > > Provide the software (LiViD) with the disc and license to use it. > Then they would have to restrain both. So far we can't say that > LiViD itself is illegal even under Kaplan's rule, if the content > copyright owner AUTHORIZES its use for that particular purpose. Provide a book written in invisible ink that can only be read by application of a heroin solution. Provide the heroin with the book. See how sympathetic the Court will be. > True, they might argue that LiViD might have another purpose. > But that would be harder to prove than their arguments about > "trafficking" alone. Here the intent, purpose, and primary > use are all clear up front, and the authorization model is > also clear as crystal. As noted elsewhere, it might work if you only ship a version of LiViD hard-coded to read that DVD and no other. The trick is to get it before the Court in the right context, and I'm afraid that that might require some cooperation from the other side. > If we manage to get the case heard in the 5th circuit then we > invoke Vault v Quaid, which ruled on exactly this point. The > password cracking program had one use that was obviously fair--it > allowed the software purchaser to make a backup copy. Indeed it > also allowed other copies, not so legal. But since it had this > *one* fair use it must be allowed. That was before DMCA, which created a specific statutory basis for objection to 'circumvention' devices. A court wouldn't have much of a stretch to rule differently today in a similar case covered by DMCA. > We need to plead before a court that DMCA and Universal v Corley > do not overrule Vault v Quaid. And, indeed, they don't, because > the anticircumvention clause is separate from the case where > the software is provided with an intended use such as this. Yup, but that's the problem. As long as the plaintiffs can attack the device and not the action, they have a tremendous advantage. Fair use doesn't even come into the courtroom; the court can rule based purely on the qustion of whether the device is a circumvention device, leaving any fair-use issues moot because there is no way to bring them up. Your fair-use right to make media-shifted copies of (e.g.) videotapes doesn't obligate anyone to provide you with DVD-mastering equipment and services. The rights remain unaffected by your practical problems with exercising them. > > The software provider could try to defend on the grounds that it had > > another use, but the Court just finds that the other use is artificial > > (using, perhaps, this list archive as evidence of intent) and of no > > compelling economic weight compared to the overwhelming value > > of copyrighted Hollywood content that it was obviously meant to rip. > > Fine. Then we have one copyright owner suing to suppress the > work of another copyright owner, invoking copyright--to what? > It is a *threat* vs *real* damage. No, you have a copyright owner suing to suppress the distribution of a device for circumventing his TPM. The fact that that, for purely artificial purposes, someone has contrived to produce content of negligible economic importance that makes non-circumventing use of the device is explicitly discounted by the statute. The copyright holder has many alternative means of publication, so his rights are not impacted. -- | Microsoft: "A reputation for releasing inferior software will make | | it more difficult for a software vendor to induce customers to pay | | for new products or new versions of existing products." | +----------- D. C. & M. V. Sessions ----------+ From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 19 10:50:52 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA12689 for dvd-discuss-outgoing; Sat, 19 Aug 2000 10:50:52 -0400 Received: from ramtop.demon.co.uk (phil@ramtop.demon.co.uk [194.222.228.63]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id KAA12686 for ; Sat, 19 Aug 2000 10:50:49 -0400 Received: (from phil@localhost) by ramtop.demon.co.uk (8.9.3/8.9.3) id PAA19509 for dvd-discuss@eon.law.harvard.edu; Sat, 19 Aug 2000 15:52:55 +0100 Date: Sat, 19 Aug 2000 15:52:55 +0100 From: Phil Harrison To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] introduction Message-ID: <20000819155255.A19478@ramtop.demon.co.uk> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <20000818210635.A28207@lemuria.org> <14749.64358.263678.23652@patris.bel-kwinith.org> <399E0B67.3739B344@mediaone.net> <00081906523901.27287@frankenstein.lumbercartel.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii Content-Disposition: inline User-Agent: Mutt/1.2.5i In-Reply-To: <00081906523901.27287@frankenstein.lumbercartel.com>; from dcs@mailhost.lumbercartel.com on Sat, Aug 19, 2000 at 06:50:04AM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sat, Aug 19, 2000 at 06:50:04AM -0700, D. C. Sessions wrote: > On Fri, 18 Aug 2000, Sphere wrote: > > > Don't provide LiVid. Just the disk. I can't > > watch the disk without LiViD. My Constitutional > > right to See/hear/read speech has been infringed. > > I want LiVid so I can know what is being said. > > > > Go after the right to hear free speech, not > > the right to produce it. Just provide the > > speech in a manner I cannot receive under > > the law and the law is itself a prior > > restraint of speech. > > [DA] The author shouldn't have required an illegal instrument for > access to the content then. Publishing a book in an invisible ink > which requires a heroin solution to become readable doesn't bring > heroin under the First Amendment. > But LiViD would only be illegal under the statute if it circumvented, and it can only be circumventing if it decrypts without authorisation from the copyright holder. If the copyright holder grants authority to decrypt using LiViD, then it isn't circumventing. -- Phil Harrison From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 19 11:19:49 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA12837 for dvd-discuss-outgoing; Sat, 19 Aug 2000 11:19:49 -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 LAA12834 for ; Sat, 19 Aug 2000 11:19:48 -0400 Received: from mediaone.net (h0060b03c5b8b.ne.mediaone.net [24.128.18.77]) by chmls06.mediaone.net (8.8.7/8.8.7) with ESMTP id LAA03149 for ; Sat, 19 Aug 2000 11:19:48 -0400 (EDT) Message-ID: <399EA594.84973A77@mediaone.net> Date: Sat, 19 Aug 2000 11:19:48 -0400 From: Sphere X-Mailer: Mozilla 4.73 [en] (WinNT; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] introduction References: <20000818210635.A28207@lemuria.org> <14749.64358.263678.23652@patris.bel-kwinith.org> <399E0B67.3739B344@mediaone.net> <00081906523901.27287@frankenstein.lumbercartel.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 "D. C. Sessions" wrote: > > On Fri, 18 Aug 2000, Sphere wrote: > > > Don't provide LiVid. Just the disk. I can't > > watch the disk without LiViD. My Constitutional > > right to See/hear/read speech has been infringed. > > I want LiVid so I can know what is being said. > > > > Go after the right to hear free speech, not > > the right to produce it. Just provide the > > speech in a manner I cannot receive under > > the law and the law is itself a prior > > restraint of speech. > > [DA] The author shouldn't have required an illegal instrument for > access to the content then. Publishing a book in an invisible ink > which requires a heroin solution to become readable doesn't bring > heroin under the First Amendment. > The author's intent is of no interest to me. I want to know what is on the disk. I have a right to know what is on the disk. As far as I know the author's intent was to create a game, and my problem in playing the game is to find out what is on the disk. Is the court going to prevent me from "hearing" what is on the disk? -- Sphere. No permanence. No self. No perfection. From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 19 11:34:53 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA12973 for dvd-discuss-outgoing; Sat, 19 Aug 2000 11:34:53 -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 LAA12970 for ; Sat, 19 Aug 2000 11:34:52 -0400 Received: from mediaone.net (h0060b03c5b8b.ne.mediaone.net [24.128.18.77]) by chmls05.mediaone.net (8.8.7/8.8.7) with ESMTP id LAA16083 for ; Sat, 19 Aug 2000 11:34:51 -0400 (EDT) Message-ID: <399EA91C.5278D153@mediaone.net> Date: Sat, 19 Aug 2000 11:34:52 -0400 From: Sphere X-Mailer: Mozilla 4.73 [en] (WinNT; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] introduction References: <20000818210635.A28207@lemuria.org> <00081820584301.26462@frankenstein.lumbercartel.com> <20000819003823.A3008@eldritchpress.org> <00081907123002.27287@frankenstein.lumbercartel.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 "D. C. Sessions" wrote: > > On Fri, 18 Aug 2000, Eric Eldred wrote: > > On Fri, Aug 18, 2000 at 08:53:35PM -0700, D. C. Sessions wrote: > > > On Fri, 18 Aug 2000, Eric Eldred wrote: > > > > On Fri, Aug 18, 2000 at 09:15:10PM -0400, rst@alum.mit.edu wrote: > > > > > > > But what I was proposing was that we simply > > > > follow Judge Kaplan's stated proposal and do everything > > > > according to his way of thinking. Produce a DVD--but then > > > > issue a license that the user has the authority of the > > > > copyright holder to use DeCSS or LiViD or whatever other > > > > player or decryption technology she wants to. Then it > > > > would be up to DVD-CCA to sue *the content copyright > > > > holder*--for what? Violation of the license? Violating > > > > the secret contract with DVD-CCA? (I doubt it ever thought > > > > of such a thing.) "Trafficking" in some decryption technology > > > > that is issued *with* the authorization of the content copyright > > > > holder? Violation of the CSS patents or trade secrets? > > > > > > No, they sue for traficking in a device primarily used > > > for circumvention. They take no action whatever against the DVD > > > (obviously) but just sue the nads off of whoever provides the software. > > > > Provide the software (LiViD) with the disc and license to use it. > > Then they would have to restrain both. So far we can't say that > > LiViD itself is illegal even under Kaplan's rule, if the content > > copyright owner AUTHORIZES its use for that particular purpose. > > Provide a book written in invisible ink that can only be read by application > of a heroin solution. Provide the heroin with the book. See how sympathetic > the Court will be. Don't provide the heroin. > > True, they might argue that LiViD might have another purpose. > > But that would be harder to prove than their arguments about > > "trafficking" alone. Here the intent, purpose, and primary > > use are all clear up front, and the authorization model is > > also clear as crystal. > > As noted elsewhere, it might work if you only ship a version of LiViD > hard-coded to read that DVD and no other. The trick is to get it before > the Court in the right context, and I'm afraid that that might require some > cooperation from the other side. Don't provide any version of LiViD. Just add this key to the already existing key set of LiViD and leave the customer with the problem of viewing the disk. The customer now has to either use illegal software in order to view the contents, forgo viewing the contents, or sue for the right to view the contents. ... > > Fine. Then we have one copyright owner suing to suppress the > > work of another copyright owner, invoking copyright--to what? > > It is a *threat* vs *real* damage. > > No, you have a copyright owner suing to suppress the distribution of a > device for circumventing his TPM. The fact that that, for purely artificial > purposes, someone has contrived to produce content of negligible economic > importance that makes non-circumventing use of the device is explicitly > discounted by the statute. > > The copyright holder has many alternative means of publication, so his > rights are not impacted. Just go at it from the other end. Freedom of speech is freedom to hear. If the provider of speech chooses to use strange methods of providing that speech this does not effect my freedom to hear. As a listener I have no control over the speaker's method of providing speech and have to make do if I want to know the contents of the speech. -- Sphere. No permanence. No self. No perfection. From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 19 11:37:05 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA13089 for dvd-discuss-outgoing; Sat, 19 Aug 2000 11:37:05 -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 LAA13086 for ; Sat, 19 Aug 2000 11:37:04 -0400 Received: from mediaone.net (h0060b03c5b8b.ne.mediaone.net [24.128.18.77]) by chmls05.mediaone.net (8.8.7/8.8.7) with ESMTP id LAA16796 for ; Sat, 19 Aug 2000 11:37:04 -0400 (EDT) Message-ID: <399EA9A0.D1421D6E@mediaone.net> Date: Sat, 19 Aug 2000 11:37:04 -0400 From: Sphere X-Mailer: Mozilla 4.73 [en] (WinNT; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] introduction References: <20000818210635.A28207@lemuria.org> <14749.64358.263678.23652@patris.bel-kwinith.org> <399E0B67.3739B344@mediaone.net> <00081906523901.27287@frankenstein.lumbercartel.com> <20000819155255.A19478@ramtop.demon.co.uk> Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Phil Harrison wrote: > > On Sat, Aug 19, 2000 at 06:50:04AM -0700, D. C. Sessions wrote: > > On Fri, 18 Aug 2000, Sphere wrote: > > > > > Don't provide LiVid. Just the disk. I can't > > > watch the disk without LiViD. My Constitutional > > > right to See/hear/read speech has been infringed. > > > I want LiVid so I can know what is being said. > > > > > > Go after the right to hear free speech, not > > > the right to produce it. Just provide the > > > speech in a manner I cannot receive under > > > the law and the law is itself a prior > > > restraint of speech. > > > > [DA] The author shouldn't have required an illegal instrument for > > access to the content then. Publishing a book in an invisible ink > > which requires a heroin solution to become readable doesn't bring > > heroin under the First Amendment. > > > But LiViD would only be illegal under the statute if it circumvented, and it can > only be circumventing if it decrypts without authorisation from the copyright > holder. If the copyright holder grants authority to decrypt using LiViD, then it > isn't circumventing. I still want to view my new disk, and I can't. I don't care if it's circumventing or walking on my hands. I want to view my new disk. > -- > Phil Harrison -- Sphere. No permanence. No self. No perfection. From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 19 11:42:47 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA13135 for dvd-discuss-outgoing; Sat, 19 Aug 2000 11:42:47 -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 LAA13132 for ; Sat, 19 Aug 2000 11:42:46 -0400 Received: from mediaone.net (h0060b03c5b8b.ne.mediaone.net [24.128.18.77]) by chmls05.mediaone.net (8.8.7/8.8.7) with ESMTP id LAA18631 for ; Sat, 19 Aug 2000 11:42:46 -0400 (EDT) Message-ID: <399EAAF6.7C36DD9D@mediaone.net> Date: Sat, 19 Aug 2000 11:42:46 -0400 From: Sphere X-Mailer: Mozilla 4.73 [en] (WinNT; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss Subject: [dvd-discuss] Region coding. Content-Type: text/plain; charset=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 about simply buying a disk not encoded for region one and then suing to be able to watch it? -- Sphere. No permanence. No self. No perfection. From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 19 11:48:57 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA13179 for dvd-discuss-outgoing; Sat, 19 Aug 2000 11:48:57 -0400 Received: from smtp04.primenet.com (smtp04.primenet.com [206.165.6.134]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id LAA13176 for ; Sat, 19 Aug 2000 11:48:55 -0400 Received: (from daemon@localhost) by smtp04.primenet.com (8.9.3/8.9.3) id IAA17141 for ; Sat, 19 Aug 2000 08:47:06 -0700 (MST) Received: from sessions.phx.primenet.com(206.132.239.114), claiming to be "heorot.lumbercartel.com" via SMTP by smtp04.primenet.com, id smtpdAAAKPaGlH; Sat Aug 19 08:46:54 2000 Received: from frankenstein.lumbercartel.com (IDENT:dcs@frankenstein.lumbercartel.com [192.168.6.2]) by heorot.lumbercartel.com (8.9.3/8.8.7) with SMTP id IAA05721 for ; Sat, 19 Aug 2000 08:47:28 -0700 From: "D. C. Sessions" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] introduction Date: Sat, 19 Aug 2000 08:09:49 -0700 X-Mailer: KMail [version 1.0.29] Content-Type: text/plain References: <20000818210635.A28207@lemuria.org> <00081906523901.27287@frankenstein.lumbercartel.com> <20000819155255.A19478@ramtop.demon.co.uk> In-Reply-To: <20000819155255.A19478@ramtop.demon.co.uk> MIME-Version: 1.0 Message-Id: <00081908131600.27457@frankenstein.lumbercartel.com> Content-Transfer-Encoding: 8bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sat, 19 Aug 2000, Phil Harrison wrote: > On Sat, Aug 19, 2000 at 06:50:04AM -0700, D. C. Sessions wrote: > > On Fri, 18 Aug 2000, Sphere wrote: > > > > > Don't provide LiVid. Just the disk. I can't > > > watch the disk without LiViD. My Constitutional > > > right to See/hear/read speech has been infringed. > > > I want LiVid so I can know what is being said. > > > > > > Go after the right to hear free speech, not > > > the right to produce it. Just provide the > > > speech in a manner I cannot receive under > > > the law and the law is itself a prior > > > restraint of speech. > > > > [DA] The author shouldn't have required an illegal instrument for > > access to the content then. Publishing a book in an invisible ink > > which requires a heroin solution to become readable doesn't bring > > heroin under the First Amendment. > > > But LiViD would only be illegal under the statute if it circumvented, and it can > only be circumventing if it decrypts without authorisation from the copyright > holder. If the copyright holder grants authority to decrypt using LiViD, then it > isn't circumventing. [DA] No, LiViD is illegal if it's primarily *intended* to circumvent, or if its main economic application is circumvention. Since the vast economic majority of trade in DVDs is from the big studios, if they don't want their disks played on LiViD then it's a circumvention tool. Which anyone working on LiViD knows or has every reason to know, so that must be their intention. -- | Microsoft: "A reputation for releasing inferior software will make | | it more difficult for a software vendor to induce customers to pay | | for new products or new versions of existing products." | +----------- D. C. & M. V. Sessions ----------+ From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 19 12:00:57 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA13263 for dvd-discuss-outgoing; Sat, 19 Aug 2000 12:00:57 -0400 Received: from smtp02.primenet.com (smtp02.primenet.com [206.165.6.132]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id MAA13260 for ; Sat, 19 Aug 2000 12:00:56 -0400 Received: (from daemon@localhost) by smtp02.primenet.com (8.9.3/8.9.3) id IAA15994 for ; Sat, 19 Aug 2000 08:58:52 -0700 (MST) Received: from sessions.phx.primenet.com(206.132.239.114), claiming to be "heorot.lumbercartel.com" via SMTP by smtp02.primenet.com, id smtpdAAAJTa4lF; Sat Aug 19 08:58:43 2000 Received: from frankenstein.lumbercartel.com (IDENT:dcs@frankenstein.lumbercartel.com [192.168.6.2]) by heorot.lumbercartel.com (8.9.3/8.8.7) with SMTP id JAA05758 for ; Sat, 19 Aug 2000 09:00:44 -0700 From: "D. C. Sessions" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] introduction Date: Sat, 19 Aug 2000 08:48:30 -0700 X-Mailer: KMail [version 1.0.29] Content-Type: text/plain References: <20000818210635.A28207@lemuria.org> <00081906523901.27287@frankenstein.lumbercartel.com> <399EA594.84973A77@mediaone.net> In-Reply-To: <399EA594.84973A77@mediaone.net> MIME-Version: 1.0 Message-Id: <00081909003600.27645@frankenstein.lumbercartel.com> Content-Transfer-Encoding: 8bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sat, 19 Aug 2000, Sphere wrote: > "D. C. Sessions" wrote: > > > > On Fri, 18 Aug 2000, Sphere wrote: > > > > > Don't provide LiVid. Just the disk. I can't > > > watch the disk without LiViD. My Constitutional > > > right to See/hear/read speech has been infringed. > > > I want LiVid so I can know what is being said. > > > > > > Go after the right to hear free speech, not > > > the right to produce it. Just provide the > > > speech in a manner I cannot receive under > > > the law and the law is itself a prior > > > restraint of speech. > > > > [DA] The author shouldn't have required an illegal instrument for > > access to the content then. Publishing a book in an invisible ink > > which requires a heroin solution to become readable doesn't bring > > heroin under the First Amendment. > The author's intent is of no interest > to me. I want to know what is on the > disk. I have a right to know what is > on the disk. Not necessarily. If I sell you a book in Ancient Atlantean which, surprise! you can't read, that imposes no burden on the rest of the world. Your lookout. Similarly, if you were blind or deaf and I sold you a printed book or audiotape, your desire to know what's in the book or on the tape impose no obligation on the rest of the world to provide suitable media conversions. You certainly don't have the right to, for instance, make use against their will of someone else's voice-to-text equipment to do your transcription. So, yes, you have a right to know what's there but working out the details -- and doing so without violating the law -- is your problem. > As far as I know the > author's intent was to create a game, > and my problem in playing the game is to > find out what is on the disk. Is the > court going to prevent me from "hearing" > what is on the disk? Not at all. Go right ahead. But your desire to get into a locked safe (which you legally own) doesn't suddenly make use of high explosives inside of city limits legal. And as long as LiViD is legally comparable to a 20mm Gatling gun, you're not going to be able to legally buy one regardless of the nobility of your intentions. -- | Microsoft: "A reputation for releasing inferior software will make | | it more difficult for a software vendor to induce customers to pay | | for new products or new versions of existing products." | +----------- D. C. & M. V. Sessions ----------+ From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 19 12:09:12 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA13356 for dvd-discuss-outgoing; Sat, 19 Aug 2000 12:09:12 -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 MAA13353 for ; Sat, 19 Aug 2000 12:09:11 -0400 Received: from mediaone.net (h0060b03c5b8b.ne.mediaone.net [24.128.18.77]) by chmls06.mediaone.net (8.8.7/8.8.7) with ESMTP id MAA17244 for ; Sat, 19 Aug 2000 12:09:10 -0400 (EDT) Message-ID: <399EB126.A20E104E@mediaone.net> Date: Sat, 19 Aug 2000 12:09:10 -0400 From: Sphere X-Mailer: Mozilla 4.73 [en] (WinNT; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] introduction References: <20000818210635.A28207@lemuria.org> <00081906523901.27287@frankenstein.lumbercartel.com> <399EA594.84973A77@mediaone.net> <00081909003600.27645@frankenstein.lumbercartel.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 "D. C. Sessions" wrote: > > On Sat, 19 Aug 2000, Sphere wrote: > > "D. C. Sessions" wrote: > > > > > > On Fri, 18 Aug 2000, Sphere wrote: > > > > > > > Don't provide LiVid. Just the disk. I can't > > > > watch the disk without LiViD. My Constitutional > > > > right to See/hear/read speech has been infringed. > > > > I want LiVid so I can know what is being said. > > > > > > > > Go after the right to hear free speech, not > > > > the right to produce it. Just provide the > > > > speech in a manner I cannot receive under > > > > the law and the law is itself a prior > > > > restraint of speech. > > > > > > [DA] The author shouldn't have required an illegal instrument for > > > access to the content then. Publishing a book in an invisible ink > > > which requires a heroin solution to become readable doesn't bring > > > heroin under the First Amendment. > > > The author's intent is of no interest > > to me. I want to know what is on the > > disk. I have a right to know what is > > on the disk. > > Not necessarily. If I sell you a book in Ancient Atlantean which, > surprise! you can't read, that imposes no burden on the rest of the > world. Your lookout. Similarly, if you were blind or deaf and I sold you > a printed book or audiotape, your desire to know what's in the book > or on the tape impose no obligation on the rest of the world to provide > suitable media conversions. You certainly don't have the right to, for > instance, make use against their will of someone else's voice-to-text > equipment to do your transcription. > > So, yes, you have a right to know what's there but working out the > details -- and doing so without violating the law -- is your problem. > > > As far as I know the > > author's intent was to create a game, > > and my problem in playing the game is to > > find out what is on the disk. Is the > > court going to prevent me from "hearing" > > what is on the disk? > > Not at all. Go right ahead. But your desire to get into a locked safe > (which you legally own) doesn't suddenly make use of high > explosives inside of city limits legal. And as long as LiViD is > legally comparable to a 20mm Gatling gun, you're not going to be > able to legally buy one regardless of the nobility of your intentions. But it does make the formula for high explosives legal, if I understand the first amendment precidence on this issue correctly. It's not the author's right to publish the formula which is protected, but my right to learn the formula. -- Sphere. No permanence. No self. No perfection. From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 19 12:41:38 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA13882 for dvd-discuss-outgoing; Sat, 19 Aug 2000 12:41:38 -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 MAA13879 for ; Sat, 19 Aug 2000 12:41:37 -0400 Received: from jy01 (user-2iniie3.dialup.mindspring.com [165.121.73.195]) by tisch.mail.mindspring.net (8.9.3/8.8.5) with SMTP id MAA08390 for ; Sat, 19 Aug 2000 12:41:33 -0400 (EDT) Message-Id: <200008191641.MAA08390@tisch.mail.mindspring.net> X-Sender: jya@pop.pipeline.com X-Mailer: QUALCOMM Windows Eudora Pro Version 4.0 Date: Sat, 19 Aug 2000 12:34:52 -0400 To: dvd-discuss@eon.law.harvard.edu From: John Young Subject: [dvd-discuss] Whither Defendants? In-Reply-To: <399EB126.A20E104E@mediaone.net> References: <20000818210635.A28207@lemuria.org> <00081906523901.27287@frankenstein.lumbercartel.com> <399EA594.84973A77@mediaone.net> <00081909003600.27645@frankenstein.lumbercartel.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 Kaplan was a monster, but worse was that the defendants have been ignored in the case by everybody in the justice thingamajig. At the PI hearing Reimerdes and Kazan were ignored, and Emmanuel wasn't notified in time to attend. Kazan's pleas at the hearing about lack of timely filing of his response were ignored, and nobody would even talk to him about it. Both Reimerdes and Kazan said they were not briefed or consulted by defense attorneys, or notifed late of the need for responses, for requested information, for timely filings. That is why Reimerdes and Kazan settled so quickly: based on the shitty way they were treated by *all* parties they believed they were going to be screwed by everybody else, and that is indeed what they were advised by their own attorneys: that that was sure to be the case, so save your own ass and get the fuck out. During the trial I saw Emmanuel consulted only once by the defense team, although I understand there were huddlings elsewhere. He did not sit at the defense table, and was so little needed that he came to trial infrequently. To be sure, MPAA reps seldom came either. It was explained that some folks did not come because they were scheduled witnesses. Or had to leave the court when that became a prospect. Nobody could take part in the trial except those pre-approved to do so under highly restrictive procedures. This, it was explained as if to idiots, was to expedite justice. For whatever reasons of convenience of the operation of the justice systme defendants have been excluded from full participation in their own defense. To be me that sucks. And should be a warning to anybody who thinks the smart thing is to consult a lawyer, or, worse, believe in a nation of laws, or worse than that, a world governed by law of a particular virulent strain. Recall that that very intention is a prime export of the United States, and that it is no secret that the model for global governance and law enforcement is branded USA -- backed not modestly by the greated military enforcement thingamajig you've ever nightmared about. No wonder that Kaplan and Valenti and Bronfman imperially think that what they think is theirs for the taking is the way it's going to be. Hell, they believe what they advocate is legal, being devotees of the Empire method of legalized power makes right. Battalions of lawyers, as Bronfman hinted, can at any moment be replaced by battalions of warfighters lawfully authorized by the Commander in Chief to protect national interests. The ground prepared by covert battalions of spies, here, there -- right on the defense teams, nah, that's unethical, to even suggest it is FUDing for the enemy. Defense here meaning national not DeCSS. From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 19 12:45:39 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA14002 for dvd-discuss-outgoing; Sat, 19 Aug 2000 12:45:39 -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 MAA13999 for ; Sat, 19 Aug 2000 12:45:38 -0400 Message-ID: <20000819164507.5528.qmail@web513.mail.yahoo.com> Received: from [64.81.25.36] by web513.mail.yahoo.com; Sat, 19 Aug 2000 09:45:07 PDT Date: Sat, 19 Aug 2000 09:45:07 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] california jurisdiction question To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --- John Young wrote: > James Tyre offers sound legal advice. I recommend that you take his advice, add the "magic phrase" at the bottom, and look at the Pavlovich motion to quash and emulate it. This is surely better than doing nothing, and you can probably will help yourself tremendously. In any event, if things don't go well, just do what Yahoo did to France: publicly tell California to stick it. Question for the lawyers: Isn't there something in the law about "frivolous" lawsuits. Suing somebody in California that has no connection to US jurisdiction, let alone California just seems to me like it should incurr some form of penalty or sanctions. __________________________________________________ Do You Yahoo!? Send instant messages & get email alerts with Yahoo! Messenger. http://im.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 19 13:09:28 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA14265 for dvd-discuss-outgoing; Sat, 19 Aug 2000 13:09:28 -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 NAA14262 for ; Sat, 19 Aug 2000 13:09:27 -0400 Received: from jy01 (user-2iniie3.dialup.mindspring.com [165.121.73.195]) by tisch.mail.mindspring.net (8.9.3/8.8.5) with SMTP id NAA27787 for ; Sat, 19 Aug 2000 13:09:26 -0400 (EDT) Message-Id: <200008191709.NAA27787@tisch.mail.mindspring.net> X-Sender: jya@pop.pipeline.com X-Mailer: QUALCOMM Windows Eudora Pro Version 4.0 Date: Sat, 19 Aug 2000 13:02:45 -0400 To: dvd-discuss@eon.law.harvard.edu From: John Young Subject: Re: [dvd-discuss] california jurisdiction question In-Reply-To: <20000819164507.5528.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 Look, there are things a lawyer is not allowed to do without taking on risk, and one dangerous thing they seldom do is advise against consulting a lawyer. Same for me, a registered architect, so I'll use that as an analogy. If I give somebody bad architectural advice I can be punished for it, even it is the advice that a person might have given herself. The difference is that I am supposed to know better while the person is not. And the person has defenses for her behavior that I do not have as an architect. So one of the safest things I can do if someone asks me for architectural advice is to say get an architect. Doesn't have to be me, some other architect sends me victims, oops, needy persons. But the worst part of is that few architects are even punished for crummy services. But a lot of people are punished for constructing without the services of an architect -- a requirement under many US building codes. And architects are not above citing that requirement as a means to pay their kids' tuition. And sitting on building code committees to see that their interests are protected. We architects believe a nation of architecture is a great thing, better, a world governed according to architecture, no matter that most of it is ugly, inhumane, unsafe, expensive and harder and harder to come by outside of anarchic garbage dumps -- which in some countries are governed by what else, health and building codes, in the interest, mind you, of the dumpsters quality of life and the sacred little children who might otherwise become sex toys of tourists and tv tearjerkers. Sure, there are a tiny number of selfless architects who do invaluable public service work, and they are feted by those who less than none, especially those who work against the public's interest by building the worst piles of garbage for garbage producers ever imagined. This analogy may not fit all lawyers, or accountants, or doctors, or teachers, but few who have been my clients are misfits. My lawyer is an angel, expensive, negligent, lazy, cruel, but mine loyal defender, for half my 3-figured income. He advises don't do it, whatever it is I ask for permission to do. But I'm here if you do, he chesires, no pro bono. From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 19 13:38:48 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA14548 for dvd-discuss-outgoing; Sat, 19 Aug 2000 13:38:48 -0400 Received: from relay21.smtp.psi.net (relay21.smtp.psi.net [38.8.22.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id NAA14545 for ; Sat, 19 Aug 2000 13:38:47 -0400 Received: from ip175.bedford3.ma.pub-ip.psi.net ([38.32.11.175]) by relay21.smtp.psi.net with smtp (Exim 3.13 #3) id 13QCZy-00013O-00 for dvd-discuss@eon.law.harvard.edu; Sat, 19 Aug 2000 13:38:47 -0400 From: Ron Gustavson To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] california jurisdiction question Date: Sat, 19 Aug 2000 13:32:23 -0400 Message-ID: References: <20000819164507.5528.qmail@web513.mail.yahoo.com> In-Reply-To: <20000819164507.5528.qmail@web513.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 NAA14546 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sat, 19 Aug 2000 09:45:07 -0700 (PDT), Bryan Taylor wrote: >I recommend that you take his advice, add the "magic phrase" at the >bottom, and look at the Pavlovich motion to quash and emulate it. This >is surely better than doing nothing, and you can probably will help >yourself tremendously. Before I sent anything, I'd run it by a German lawyer. __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 19 14:26:47 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA14723 for dvd-discuss-outgoing; Sat, 19 Aug 2000 14:26:47 -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 OAA14714 for ; Sat, 19 Aug 2000 14:26:46 -0400 Received: from localhost (ssyreeni@localhost) by kruuna.Helsinki.FI (8.10.1/8.10.1) with ESMTP id e7JIQiF14494 for ; Sat, 19 Aug 2000 21:26:45 +0300 (EET DST) X-Authentication-Warning: kruuna.Helsinki.FI: ssyreeni owned process doing -bs Date: Sat, 19 Aug 2000 21:26:44 +0300 (EET DST) From: Sampo A Syreeni To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] More thoughts on authority In-Reply-To: <20000818203702.B13785@ramtop.demon.co.uk> Message-ID: MIME-Version: 1.0 Content-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, 18 Aug 2000, Phil Harrison wrote: >For example, if 2600 magazine (or anyone else for that matter) managed to >produce a CSS encrypted DVD without involving the DVDCCA, they could grant >authority to decrypt to whoever they want since they are clearly the copyright >holder. If they were selling these DVD's from their website and authorised the >use of DeCSS to access the work, would this constitute a significant purpose or >use of DeCSS other than to circumvent? Probably but I think that encryption tools could bump into the CSS patents, as they probably would have to play by the book unlike decryption ones. Sampo Syreeni , aka decoy, student/math/Helsinki university From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 19 14:26:47 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA14719 for dvd-discuss-outgoing; Sat, 19 Aug 2000 14:26:47 -0400 Received: from mail.lemuria.org (lemuria.borgfelde.ricardo.de [195.244.103.65]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id OAA14713 for ; Sat, 19 Aug 2000 14:26:46 -0400 Received: from lemuria.org by mail.lemuria.org via rsmtp with bsmtp id for ; Sat, 19 Aug 2000 20:15:55 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Received: by lemuria.org via sendmail with stdio id for dvd-discuss@eon.law.harvard.edu; Sat, 19 Aug 2000 19:42:14 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Date: Sat, 19 Aug 2000 19:42:14 +0200 From: Tom Vogt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Region coding. Message-ID: <20000819194214.A15008@lemuria.org> References: <399EAAF6.7C36DD9D@mediaone.net> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0pre3i In-Reply-To: <399EAAF6.7C36DD9D@mediaone.net> X-Privacy: If you can, please encrypt your mails - finger for key Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Sphere wrote: > How about simply buying a disk not encoded > for region one and then suing to be able > to watch it? if it were that simple, I'm sure MPAA would've spotted it long ago and created a law that makes sure even trying to is illegal. -- "The net treats censorship as a malfunction and re-routes around it." (John Gilmore) From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 19 14:30:46 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA14876 for dvd-discuss-outgoing; Sat, 19 Aug 2000 14:30:46 -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 OAA14873 for ; Sat, 19 Aug 2000 14:30:44 -0400 Received: from localhost (ssyreeni@localhost) by kruuna.Helsinki.FI (8.10.1/8.10.1) with ESMTP id e7JIUhW14649 for ; Sat, 19 Aug 2000 21:30:43 +0300 (EET DST) X-Authentication-Warning: kruuna.Helsinki.FI: ssyreeni owned process doing -bs Date: Sat, 19 Aug 2000 21:30:43 +0300 (EET DST) From: Sampo A Syreeni To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] introduction In-Reply-To: <20000818222326.H10630@lemuria.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, 18 Aug 2000, Tom Vogt wrote: >> What jurisdiction are you in, out of curiosity? > >way outside california - I'm a german citizen, I've never been to >california in my life, and my webserver is also here in germany. Extraterritorial litigation is a swanky beast, ain't it? ;) On a more serious note, do you have information on the status of implementation of the WIPO anti-circumvention provisions in different parts of Europe? Sampo Syreeni , aka decoy, student/math/Helsinki university From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 19 14:40:50 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA14929 for dvd-discuss-outgoing; Sat, 19 Aug 2000 14:40:50 -0400 Received: from smtp03.primenet.com (smtp03.primenet.com [206.165.6.133]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id OAA14924 for ; Sat, 19 Aug 2000 14:40:49 -0400 Received: (from daemon@localhost) by smtp03.primenet.com (8.9.3/8.9.3) id LAA24998 for ; Sat, 19 Aug 2000 11:39:48 -0700 (MST) Received: from sessions.phx.primenet.com(206.132.239.114), claiming to be "heorot.lumbercartel.com" via SMTP by smtp03.primenet.com, id smtpdAAAvPa4SW; Sat Aug 19 11:39:37 2000 Received: from frankenstein.lumbercartel.com (IDENT:dcs@frankenstein.lumbercartel.com [192.168.6.2]) by heorot.lumbercartel.com (8.9.3/8.8.7) with SMTP id LAA06216 for ; Sat, 19 Aug 2000 11:40:31 -0700 From: "D. C. Sessions" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Region coding. Date: Sat, 19 Aug 2000 09:08:45 -0700 X-Mailer: KMail [version 1.0.29] Content-Type: text/plain References: <399EAAF6.7C36DD9D@mediaone.net> In-Reply-To: <399EAAF6.7C36DD9D@mediaone.net> MIME-Version: 1.0 Message-Id: <00081909095102.27658@frankenstein.lumbercartel.com> Content-Transfer-Encoding: 8bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sat, 19 Aug 2000, Sphere wrote: > How about simply buying a disk not encoded > for region one and then suing to be able > to watch it? Go right ahead -- watch it. There's no law against it. There's also no law guaranteeing you means to view it, though. -- | Microsoft: "A reputation for releasing inferior software will make | | it more difficult for a software vendor to induce customers to pay | | for new products or new versions of existing products." | +----------- D. C. & M. V. Sessions ----------+ From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 19 14:40:51 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA14935 for dvd-discuss-outgoing; Sat, 19 Aug 2000 14:40:51 -0400 Received: from smtp03.primenet.com (smtp03.primenet.com [206.165.6.133]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id OAA14926 for ; Sat, 19 Aug 2000 14:40:49 -0400 Received: (from daemon@localhost) by smtp03.primenet.com (8.9.3/8.9.3) id LAA25000 for ; Sat, 19 Aug 2000 11:39:48 -0700 (MST) Received: from sessions.phx.primenet.com(206.132.239.114), claiming to be "heorot.lumbercartel.com" via SMTP by smtp03.primenet.com, id smtpdAAA.4aWSW; Sat Aug 19 11:39:38 2000 Received: from frankenstein.lumbercartel.com (IDENT:dcs@frankenstein.lumbercartel.com [192.168.6.2]) by heorot.lumbercartel.com (8.9.3/8.8.7) with SMTP id LAA06213 for ; Sat, 19 Aug 2000 11:40:30 -0700 From: "D. C. Sessions" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] introduction Date: Sat, 19 Aug 2000 09:07:29 -0700 X-Mailer: KMail [version 1.0.29] Content-Type: text/plain References: <20000818210635.A28207@lemuria.org> <20000819155255.A19478@ramtop.demon.co.uk> <399EA9A0.D1421D6E@mediaone.net> In-Reply-To: <399EA9A0.D1421D6E@mediaone.net> MIME-Version: 1.0 Message-Id: <00081909083401.27658@frankenstein.lumbercartel.com> Content-Transfer-Encoding: 8bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sat, 19 Aug 2000, Sphere wrote: > Phil Harrison wrote: > > But LiViD would only be illegal under the statute if it circumvented, and it can > > only be circumventing if it decrypts without authorisation from the copyright > > holder. If the copyright holder grants authority to decrypt using LiViD, then it > > isn't circumventing. > I still want to view my new disk, and I > can't. I don't care if it's circumventing > or walking on my hands. I want to view > my new disk. Since most of the judges you're likely to meet are parents, repeating "I want" over and over is not likely to produce a favorable response. -- | Microsoft: "A reputation for releasing inferior software will make | | it more difficult for a software vendor to induce customers to pay | | for new products or new versions of existing products." | +----------- D. C. & M. V. Sessions ----------+ From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 19 14:40:47 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA14919 for dvd-discuss-outgoing; Sat, 19 Aug 2000 14:40:47 -0400 Received: from smtp02.primenet.com (smtp02.primenet.com [206.165.6.132]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id OAA14916 for ; Sat, 19 Aug 2000 14:40:45 -0400 Received: (from daemon@localhost) by smtp02.primenet.com (8.9.3/8.9.3) id LAA03126 for ; Sat, 19 Aug 2000 11:38:42 -0700 (MST) Received: from sessions.phx.primenet.com(206.132.239.114), claiming to be "heorot.lumbercartel.com" via SMTP by smtp02.primenet.com, id smtpdAAAdpaObg; Sat Aug 19 11:38:33 2000 Received: from frankenstein.lumbercartel.com (IDENT:dcs@frankenstein.lumbercartel.com [192.168.6.2]) by heorot.lumbercartel.com (8.9.3/8.8.7) with SMTP id LAA06210 for ; Sat, 19 Aug 2000 11:40:29 -0700 From: "D. C. Sessions" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] introduction Date: Sat, 19 Aug 2000 09:01:56 -0700 X-Mailer: KMail [version 1.0.29] Content-Type: text/plain References: <20000818210635.A28207@lemuria.org> <00081907123002.27287@frankenstein.lumbercartel.com> <399EA91C.5278D153@mediaone.net> In-Reply-To: <399EA91C.5278D153@mediaone.net> MIME-Version: 1.0 Message-Id: <00081909070700.27658@frankenstein.lumbercartel.com> Content-Transfer-Encoding: 8bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sat, 19 Aug 2000, Sphere wrote: > "D. C. Sessions" wrote: > > On Fri, 18 Aug 2000, Eric Eldred wrote: > > > Provide the software (LiViD) with the disc and license to use it. > > > Then they would have to restrain both. So far we can't say that > > > LiViD itself is illegal even under Kaplan's rule, if the content > > > copyright owner AUTHORIZES its use for that particular purpose. > > > > Provide a book written in invisible ink that can only be read by application > > of a heroin solution. Provide the heroin with the book. See how sympathetic > > the Court will be. > Don't provide the heroin. Since we're trying to make heroin legal, that doesn't change anything. > > > True, they might argue that LiViD might have another purpose. > > > But that would be harder to prove than their arguments about > > > "trafficking" alone. Here the intent, purpose, and primary > > > use are all clear up front, and the authorization model is > > > also clear as crystal. > > > > As noted elsewhere, it might work if you only ship a version of LiViD > > hard-coded to read that DVD and no other. The trick is to get it before > > the Court in the right context, and I'm afraid that that might require some > > cooperation from the other side. > Don't provide any version of LiViD. Just add > this key to the already existing key set of > LiViD and leave the customer with the problem > of viewing the disk. OK, so he can't find any heroin. What next? This doesn't get us to the (desired) point of making heroin legal. > The customer now has to either use illegal > software in order to view the contents, > forgo viewing the contents, or sue for the > right to view the contents. Sue all he wants. Heroin is still illegal, and needing it to read a book isn't going to change that. > > > Fine. Then we have one copyright owner suing to suppress the > > > work of another copyright owner, invoking copyright--to what? > > > It is a *threat* vs *real* damage. > > > > No, you have a copyright owner suing to suppress the distribution of a > > device for circumventing his TPM. The fact that that, for purely artificial > > purposes, someone has contrived to produce content of negligible economic > > importance that makes non-circumventing use of the device is explicitly > > discounted by the statute. > > > > The copyright holder has many alternative means of publication, so his > > rights are not impacted. > Just go at it from the other end. Freedom > of speech is freedom to hear. If the provider > of speech chooses to use strange methods of > providing that speech this does not effect > my freedom to hear. As a listener I have no > control over the speaker's method of providing > speech and have to make do if I want to know > the contents of the speech. Your freedom to hear (or mor properly, understand) is not absolute. It cannot be waved like a magic wand over anything you contrive to put in its way to make the obstacle disappear. Again, the hypothetical book written in invisible ink doesn't make heroin legal. -- | Microsoft: "A reputation for releasing inferior software will make | | it more difficult for a software vendor to induce customers to pay | | for new products or new versions of existing products." | +----------- D. C. & M. V. Sessions ----------+ From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 19 14:44:38 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA15117 for dvd-discuss-outgoing; Sat, 19 Aug 2000 14:44:38 -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 OAA15114 for ; Sat, 19 Aug 2000 14:44:36 -0400 Received: from localhost (ssyreeni@localhost) by kruuna.Helsinki.FI (8.10.1/8.10.1) with ESMTP id e7JIiZY14969 for ; Sat, 19 Aug 2000 21:44:35 +0300 (EET DST) X-Authentication-Warning: kruuna.Helsinki.FI: ssyreeni owned process doing -bs Date: Sat, 19 Aug 2000 21:44:35 +0300 (EET DST) From: Sampo A Syreeni To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] LiViD In-Reply-To: <20000818214054.6232.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, 18 Aug 2000, Bryan Taylor wrote: >> But how are you going to prevent people from fiddling the source >> code to re-enable the features that scare the MPAA? Perhaps the >> source code should be hidden! > >The DMCA does not ban this. It would only bans distribution of the >modified tools. A stupid question: could the distribution of modifiable source code be considered aiding in the deed and would it in this case even matter (i.e. can there be 'accomplicity' in a DMCA case)? Sampo Syreeni , aka decoy, student/math/Helsinki university From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 19 14:52:33 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA15164 for dvd-discuss-outgoing; Sat, 19 Aug 2000 14:52:33 -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 OAA15161 for ; Sat, 19 Aug 2000 14:52:31 -0400 Received: from localhost (ssyreeni@localhost) by kruuna.Helsinki.FI (8.10.1/8.10.1) with ESMTP id e7JIqUC15173 for ; Sat, 19 Aug 2000 21:52:31 +0300 (EET DST) X-Authentication-Warning: kruuna.Helsinki.FI: ssyreeni owned process doing -bs Date: Sat, 19 Aug 2000 21:52:30 +0300 (EET DST) From: Sampo A Syreeni To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] california jurisdiction question In-Reply-To: <14749.54336.803685.139839@patris.bel-kwinith.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, 18 Aug 2000, Robert S. Thau wrote: > > obviously, the whole case is ridiculous as far as it concerns me. what's > > next? a peking court suing me because my webpage doesn't contain a chinese > > translation? > >No, no, no. The Chinese don't do that sort of thing. You have them >confused with the French. French or Canadian ones, even. The Chinese would likely hang you for speaking dirty, or something. ;) Sampo Syreeni , aka decoy, student/math/Helsinki university From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 19 14:59:19 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA15247 for dvd-discuss-outgoing; Sat, 19 Aug 2000 14:59:19 -0400 Received: from MIT.EDU (SOUTH-STATION-ANNEX.MIT.EDU [18.72.1.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id OAA15244 for ; Sat, 19 Aug 2000 14:59:19 -0400 Received: from GRAND-CENTRAL-STATION.MIT.EDU by MIT.EDU with SMTP id AA09756; Sat, 19 Aug 00 14:58:57 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 OAA25571 for ; Sat, 19 Aug 2000 14:59:19 -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 OAA20226 for ; Sat, 19 Aug 2000 14:59:18 -0400 (EDT) Received: (from sethf@localhost) by oobleck.mit.edu (8.9.3) id OAA01769; Sat, 19 Aug 2000 14:59:18 -0400 (EDT) Date: Sat, 19 Aug 2000 14:59:18 -0400 (EDT) Message-Id: <200008191859.OAA01769@oobleck.mit.edu> From: Seth Finkelstein To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] california jurisdiction question In-Reply-To: <20000819164507.5528.qmail@web513.mail.yahoo.com> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > Bryan Taylor > I recommend that you take his advice, add the "magic phrase" at the > bottom, and look at the Pavlovich motion to quash and emulate it. This > is surely better than doing nothing, and you can probably will help > yourself tremendously. I would put forth the idea that doing something *wrongly* would be worse than doing nothing at all. I would suggest either a) Stay out of the "tar baby" entirely OR b) Do it very, very, carefully, with full legal assistance. But there is no margin for error here. If you mess up, that's way bad. The Court may gleeful pounce upon that error as putting you under the court's jurisdiction even as you were attempting to contest the court's jurisdiction. -- Seth Finkelstein Consulting Programmer sethf@mit.edu http://sethf.com From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 19 15:00:05 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA15255 for dvd-discuss-outgoing; Sat, 19 Aug 2000 15:00:05 -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 PAA15252 for ; Sat, 19 Aug 2000 15:00:04 -0400 Received: from mediaone.net (h0060b03c5b8b.ne.mediaone.net [24.128.18.77]) by chmls06.mediaone.net (8.8.7/8.8.7) with ESMTP id PAA28296 for ; Sat, 19 Aug 2000 15:00:04 -0400 (EDT) Message-ID: <399ED934.5D27E2CF@mediaone.net> Date: Sat, 19 Aug 2000 15:00:04 -0400 From: Sphere X-Mailer: Mozilla 4.73 [en] (WinNT; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Region coding. References: <399EAAF6.7C36DD9D@mediaone.net> <20000819194214.A15008@lemuria.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 Tom Vogt wrote: > > Sphere wrote: > > How about simply buying a disk not encoded > > for region one and then suing to be able > > to watch it? > > if it were that simple, I'm sure MPAA would've spotted it long ago and > created a law that makes sure even trying to is illegal. Actually, I think having someone in Europe buy it and then sell or give it to someone in the U.S. would make the issue clearer. The copyright law makes it clear that the buyer has the right of alienation. If the buyer didn't have the right of alienation then the courts would have ruled the law unconstitional. Since the buyer has the right to dispose of his right to view the copy in any way he sees fit the buyer has the right to transfer that right to view to someone in the U.S.. Now someone in the U.S. has the right to view. The new owner of the right to view finds her ability to view thwarted by secret dealings between the copyright holder and a third party. The copyright holder has already sold the right to view this copy and has no more rights in this copy. The new owner of the copy is simply suing to obtain access to her property. I know that in real estate law if you own property and cannot reach it without going through someone else's property then you have the right to go through that person's property. I think the same principle applies here. Having a right means having all the rights necessary to execute that right, otherwise you do not have the right. > -- > "The net treats censorship as a malfunction and re-routes around it." > (John Gilmore) -- Sphere. No permanence. No self. No perfection. From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 19 15:23:42 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA15381 for dvd-discuss-outgoing; Sat, 19 Aug 2000 15:23:42 -0400 Received: from MIT.EDU (PACIFIC-CARRIER-ANNEX.MIT.EDU [18.69.0.28]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id PAA15377 for ; Sat, 19 Aug 2000 15:23:41 -0400 Received: from GRAND-CENTRAL-STATION.MIT.EDU by MIT.EDU with SMTP id AA18578; Sat, 19 Aug 00 15:23:57 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 PAA27096 for ; Sat, 19 Aug 2000 15:23:42 -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 PAA21332 for ; Sat, 19 Aug 2000 15:23:41 -0400 (EDT) Received: (from sethf@localhost) by oobleck.mit.edu (8.9.3) id PAA01779; Sat, 19 Aug 2000 15:23:41 -0400 (EDT) Date: Sat, 19 Aug 2000 15:23:41 -0400 (EDT) Message-Id: <200008191923.PAA01779@oobleck.mit.edu> From: Seth Finkelstein To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] code as speech In-Reply-To: <399E921A.A9F88EE8@mediaone.net> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > Sphere > It shouldn't be too hard to put together an > executable which isn't DeCSS itself, but when > provided a key, such as the first amendment, > spits out the DeCSS executable. I'm sure > it would be labelled a device for circumventtion, > but it would certainly confuse the legal system > in the process. Name the program Kaplan. Umm, like a self-extracting encrypted ZIP archive, with the first amendement as the encryption key? No, I don't think it would confuse the legal system for a second. Kaplan went much farther: C. Linking As indicated above, the DMCA reaches links deliberately created by a web site operator for the purpose of disseminating technology that enables the user to circumvent access controls on copyrighted works. The question is whether it may do so consistent with the First Amendment. Observe key words: "for the purpose of disseminating technology" I think he'll be real unimpressed by any fancy encoding if it's clear that the end purpose is to get DeCSS as output. -- Seth Finkelstein Consulting Programmer sethf@mit.edu http://sethf.com From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 19 15:25:15 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA15533 for dvd-discuss-outgoing; Sat, 19 Aug 2000 15:25:15 -0400 Received: from smtp04.primenet.com (smtp04.primenet.com [206.165.6.134]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA15530 for ; Sat, 19 Aug 2000 15:25:14 -0400 Received: (from daemon@localhost) by smtp04.primenet.com (8.9.3/8.9.3) id MAA27121 for ; Sat, 19 Aug 2000 12:23:26 -0700 (MST) Received: from sessions.phx.primenet.com(206.132.239.114), claiming to be "heorot.lumbercartel.com" via SMTP by smtp04.primenet.com, id smtpdAAAZca430; Sat Aug 19 12:23:16 2000 Received: from frankenstein.lumbercartel.com (IDENT:dcs@frankenstein.lumbercartel.com [192.168.6.2]) by heorot.lumbercartel.com (8.9.3/8.8.7) with SMTP id MAA06461 for ; Sat, 19 Aug 2000 12:25:00 -0700 From: "D. C. Sessions" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] LiViD Date: Sat, 19 Aug 2000 12:13:07 -0700 X-Mailer: KMail [version 1.0.29] Content-Type: text/plain References: In-Reply-To: MIME-Version: 1.0 Message-Id: <00081912153700.27781@frankenstein.lumbercartel.com> Content-Transfer-Encoding: 8bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sat, 19 Aug 2000, Sampo A Syreeni wrote: > On Fri, 18 Aug 2000, Bryan Taylor wrote: > > >> But how are you going to prevent people from fiddling the source > >> code to re-enable the features that scare the MPAA? Perhaps the > >> source code should be hidden! > > > >The DMCA does not ban this. It would only bans distribution of the > >modified tools. > > A stupid question: could the distribution of modifiable source code be > considered aiding in the deed and would it in this case even matter > (i.e. can there be 'accomplicity' in a DMCA case)? Could it? Sure; the Court in Universal vs. Corley proved that there's very little limit on what a judge can believe. But they more they have to stretch the law to arrive at the desired results the more they are courting not only reversal but rejection of the underlying law. Which is a Good Thing. -- | Microsoft: "A reputation for releasing inferior software will make | | it more difficult for a software vendor to induce customers to pay | | for new products or new versions of existing products." | +----------- D. C. & M. V. Sessions ----------+ From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 19 15:34:49 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA15635 for dvd-discuss-outgoing; Sat, 19 Aug 2000 15:34:49 -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 PAA15632 for ; Sat, 19 Aug 2000 15:34:48 -0400 Received: from mediaone.net (h0060b03c5b8b.ne.mediaone.net [24.128.18.77]) by chmls05.mediaone.net (8.8.7/8.8.7) with ESMTP id PAA21384 for ; Sat, 19 Aug 2000 15:34:48 -0400 (EDT) Message-ID: <399EE159.5B7165CD@mediaone.net> Date: Sat, 19 Aug 2000 15:34:49 -0400 From: Sphere X-Mailer: Mozilla 4.73 [en] (WinNT; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] code as speech References: <200008191923.PAA01779@oobleck.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 Seth Finkelstein wrote: > > > Sphere > > It shouldn't be too hard to put together an > > executable which isn't DeCSS itself, but when > > provided a key, such as the first amendment, > > spits out the DeCSS executable. I'm sure > > it would be labelled a device for circumventtion, > > but it would certainly confuse the legal system > > in the process. Name the program Kaplan. > > Umm, like a self-extracting encrypted ZIP archive, with the > first amendement as the encryption key? > > No, I don't think it would confuse the legal system for a > second. Kaplan went much farther: > > C. Linking > > As indicated above, the DMCA reaches links deliberately created by a > web site operator for the purpose of disseminating technology that > enables the user to circumvent access controls on copyrighted works. > The question is whether it may do so consistent with the First > Amendment. > > Observe key words: "for the purpose of disseminating technology" > I think he'll be real unimpressed by any fancy encoding if it's clear > that the end purpose is to get DeCSS as output. > > -- > Seth Finkelstein Consulting Programmer sethf@mit.edu http://sethf.com I was more interested in a piece of code which stuck its' tongue out at Kaplan. Something that said, in effect "feed Kaplan the first amendment and you get DeCSS." If the code is sitting in a jurisdiction that Kaplan can't get at, so much the better. -- Sphere. No permanence. No self. No perfection. From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 19 15:39:58 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA15988 for dvd-discuss-outgoing; Sat, 19 Aug 2000 15:39:58 -0400 Received: from MIT.EDU (PACIFIC-CARRIER-ANNEX.MIT.EDU [18.69.0.28]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id PAA15985 for ; Sat, 19 Aug 2000 15:39:58 -0400 Received: from GRAND-CENTRAL-STATION.MIT.EDU by MIT.EDU with SMTP id AA19553; Sat, 19 Aug 00 15:40:13 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 PAA27988; Sat, 19 Aug 2000 15:39:58 -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 PAA21946; Sat, 19 Aug 2000 15:39:57 -0400 (EDT) Received: (from sethf@localhost) by oobleck.mit.edu (8.9.3) id PAA01796; Sat, 19 Aug 2000 15:39:57 -0400 (EDT) Date: Sat, 19 Aug 2000 15:39:57 -0400 (EDT) Message-Id: <200008191939.PAA01796@oobleck.mit.edu> From: Seth Finkelstein To: dvd-discuss@eon.law.harvard.edu, decss@lists.lemuria.org Subject: Re: [dvd-discuss] code as speech In-Reply-To: <20000819023146.F12126@lemuria.org> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > Tom Vogt > the full package - including an already "encrypted" copy of DeCSS plus - > will be available on my website tomorrow. in the meantime, I'd like to > invite comments on the idea. Congratulations, you have just re-invented the "book code" :-) Though it's in a kind of amusingly inverted form. The old book code was using numbers to encrypt words. You're using lines to encrypt numbers (ASCII codes). Someone else is on the way to re-inventing XOR with one-time pads. (or maybe it's XOR with a long repeated-key). Kaplan has *dealt* with this: Computer code is expressive. To that extent, it is a matter of First Amendment concern. But computer code is not purely expressive any more than the assassination of a political figure is purely a political statement. Code causes computers to perform desired functions. Its expressive element no more immunizes its functional aspects from regulation than the expressive motives of an assassin immunize the assassin's action. -- Seth Finkelstein Consulting Programmer sethf@mit.edu http://sethf.com From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 19 15:42:11 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA16311 for dvd-discuss-outgoing; Sat, 19 Aug 2000 15:42:11 -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 PAA16308 for ; Sat, 19 Aug 2000 15:42:09 -0400 Received: from travel-net.com (trj95.travel-net.com [207.176.160.95]) by mail.travel-net.com (8.9.3/8.9.3) with ESMTP id PAA16153 for ; Sat, 19 Aug 2000 15:42:06 -0400 Message-ID: <399EE306.699CCDF2@travel-net.com> Date: Sat, 19 Aug 2000 15:41:58 -0400 From: Dan Steinberg 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] california jurisdiction question 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 ummmmmmmmmmm this would be a vast oversimplification of Quebec's French Language laws (something I actually know something about since I live here and (last time I checked actually had some of the leading cases...). Most of the Canadian Federal stuff relates to the necessity of govt. (not private) services being available in both official languages (with the necessary exceptions where its simply not feasible). Sampo A Syreeni wrote: > On Fri, 18 Aug 2000, Robert S. Thau wrote: > > > > obviously, the whole case is ridiculous as far as it concerns me. what's > > > next? a peking court suing me because my webpage doesn't contain a chinese > > > translation? > > > >No, no, no. The Chinese don't do that sort of thing. You have them > >confused with the French. > > French or Canadian ones, even. The Chinese would likely hang you for > speaking dirty, or something. ;) > > Sampo Syreeni , aka decoy, student/math/Helsinki university From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 19 15:46:02 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA16413 for dvd-discuss-outgoing; Sat, 19 Aug 2000 15:46:02 -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 PAA16410 for ; Sat, 19 Aug 2000 15:46:02 -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 PAA17499 for ; Sat, 19 Aug 2000 15:46:02 -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 PAA28369 for ; Sat, 19 Aug 2000 15:46:02 -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 PAA22206 for ; Sat, 19 Aug 2000 15:46:02 -0400 (EDT) Received: (from sethf@localhost) by oobleck.mit.edu (8.9.3) id PAA01809; Sat, 19 Aug 2000 15:46:01 -0400 (EDT) Date: Sat, 19 Aug 2000 15:46:01 -0400 (EDT) Message-Id: <200008191946.PAA01809@oobleck.mit.edu> From: Seth Finkelstein To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] code as speech In-Reply-To: <399EE159.5B7165CD@mediaone.net> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > Sphere > I was more interested in a piece of code > which stuck its' tongue out at Kaplan. > Something that said, in effect "feed > Kaplan the first amendment and you get > DeCSS." If the code is sitting in a > jurisdiction that Kaplan can't get at, > so much the better. So make a self-extracting ZIP archive. Use the first amendment as the password. Call it Kaplan.exe . Have fun :-) -- Seth Finkelstein Consulting Programmer sethf@mit.edu http://sethf.com From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 19 15:46:47 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA16461 for dvd-discuss-outgoing; Sat, 19 Aug 2000 15:46:47 -0400 Received: from mail.lemuria.org (lemuria.borgfelde.ricardo.de [195.244.103.65]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id PAA16458 for ; Sat, 19 Aug 2000 15:46:46 -0400 Received: from lemuria.org by mail.lemuria.org via rsmtp with bsmtp id for ; Sat, 19 Aug 2000 21:37:03 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Received: by lemuria.org via sendmail with stdio id for dvd-discuss@eon.law.harvard.edu; Sat, 19 Aug 2000 21:34:55 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Date: Sat, 19 Aug 2000 21:34:55 +0200 From: Tom Vogt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] introduction Message-ID: <20000819213455.A15319@lemuria.org> References: <20000818222326.H10630@lemuria.org> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0pre3i In-Reply-To: X-Privacy: If you can, please encrypt your mails - finger for key Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Sampo A Syreeni wrote: > Extraterritorial litigation is a swanky beast, ain't it? ;) especially with a legal system so insane that it hurts. > On a more serious note, do you have information on the status of > implementation of the WIPO anti-circumvention provisions in different parts > of Europe? no, I don't. sorry. -- "The net treats censorship as a malfunction and re-routes around it." (John Gilmore) From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 19 15:56:47 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA16599 for dvd-discuss-outgoing; Sat, 19 Aug 2000 15:56:47 -0400 Received: from mail.lemuria.org (lemuria.borgfelde.ricardo.de [195.244.103.65]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id PAA16596 for ; Sat, 19 Aug 2000 15:56:46 -0400 Received: from lemuria.org by mail.lemuria.org via rsmtp with bsmtp id for ; Sat, 19 Aug 2000 21:51:00 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Received: by lemuria.org via sendmail with stdio id for dvd-discuss@eon.law.harvard.edu; Sat, 19 Aug 2000 21:36:16 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Date: Sat, 19 Aug 2000 21:36:16 +0200 From: Tom Vogt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Region coding. Message-ID: <20000819213616.B15319@lemuria.org> References: <399EAAF6.7C36DD9D@mediaone.net> <20000819194214.A15008@lemuria.org> <399ED934.5D27E2CF@mediaone.net> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0pre3i In-Reply-To: <399ED934.5D27E2CF@mediaone.net> X-Privacy: If you can, please encrypt your mails - finger for key Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Sphere wrote: > Actually, I think having someone in Europe buy > it and then sell or give it to someone in the > U.S. would make the issue clearer. ok, who wants to get a DVD present? -- "The net treats censorship as a malfunction and re-routes around it." (John Gilmore) From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 19 16:00:12 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA16686 for dvd-discuss-outgoing; Sat, 19 Aug 2000 16:00:12 -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 QAA16683 for ; Sat, 19 Aug 2000 16:00:11 -0400 Received: from mediaone.net (h0060b03c5b8b.ne.mediaone.net [24.128.18.77]) by chmls05.mediaone.net (8.8.7/8.8.7) with ESMTP id QAA27982 for ; Sat, 19 Aug 2000 16:00:11 -0400 (EDT) Message-ID: <399EE74B.B9630329@mediaone.net> Date: Sat, 19 Aug 2000 16:00:11 -0400 From: Sphere X-Mailer: Mozilla 4.73 [en] (WinNT; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] code as speech References: <200008191939.PAA01796@oobleck.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 Seth Finkelstein wrote: > > > Tom Vogt > > the full package - including an already "encrypted" copy of DeCSS plus - > > will be available on my website tomorrow. in the meantime, I'd like to > > invite comments on the idea. > > Congratulations, you have just re-invented the "book code" :-) > Though it's in a kind of amusingly inverted form. The old book code > was using numbers to encrypt words. You're using lines to encrypt > numbers (ASCII codes). > > Someone else is on the way to re-inventing XOR with one-time pads. > (or maybe it's XOR with a long repeated-key). > > Kaplan has *dealt* with this: > > Computer code is expressive. To that extent, it is a matter of First > Amendment concern. But computer code is not purely expressive any > more than the assassination of a political figure is purely a > political statement. Code causes computers to perform desired > functions. Its expressive element no more immunizes its functional > aspects from regulation than the expressive motives of an assassin > immunize the assassin's action. This is not purely a legal fight. In fact, legally, it is very important that this become primarily a political fight with political opinions being expressed in around and through the code. The commercial aspects must be driven to the periphery, and the rights of free association made the absolute core of the issue. As long as the plaintiffs can hide behind commerce and deny the politics they can at least find some sort of plausable ground to stand on, but if we drive this firmly into the realm of political debate they have no ground upon which to stand. We may even be able use Kaplan's nattering about congress's balancing act against him because the legislature is a political body, and they are using the law to supress speech which goes against the whims of their benefactors. But we first have to express this in the political sphere, and then bring it back into the legal. Starting such an line of argument in legalese will get us nowhere. We need evidence of the political significance of the speech; which can then be brought back into court. > -- > Seth Finkelstein Consulting Programmer sethf@mit.edu http://sethf.com -- Sphere. No permanence. No self. No perfection. From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 19 16:03:13 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA16742 for dvd-discuss-outgoing; Sat, 19 Aug 2000 16:03:13 -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 QAA16739 for ; Sat, 19 Aug 2000 16:03:13 -0400 Received: from mediaone.net (h0060b03c5b8b.ne.mediaone.net [24.128.18.77]) by chmls05.mediaone.net (8.8.7/8.8.7) with ESMTP id QAA28881 for ; Sat, 19 Aug 2000 16:03:13 -0400 (EDT) Message-ID: <399EE801.CDE11E2F@mediaone.net> Date: Sat, 19 Aug 2000 16:03:13 -0400 From: Sphere X-Mailer: Mozilla 4.73 [en] (WinNT; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Region coding. References: <399EAAF6.7C36DD9D@mediaone.net> <20000819194214.A15008@lemuria.org> <399ED934.5D27E2CF@mediaone.net> <20000819213616.B15319@lemuria.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 Tom Vogt wrote: > > Sphere wrote: > > Actually, I think having someone in Europe buy > > it and then sell or give it to someone in the > > U.S. would make the issue clearer. > > ok, who wants to get a DVD present? I don't even own a DVD player of any sort. I just want to be free to read your source myself. If free speech wasn't at issue here I'd have no interest in this case at all. > -- > "The net treats censorship as a malfunction and re-routes around it." > (John Gilmore) -- Sphere. No permanence. No self. No perfection. From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 19 16:20:40 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA16934 for dvd-discuss-outgoing; Sat, 19 Aug 2000 16:20:40 -0400 Received: from smtp04.primenet.com (smtp04.primenet.com [206.165.6.134]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id QAA16931 for ; Sat, 19 Aug 2000 16:20:39 -0400 Received: (from daemon@localhost) by smtp04.primenet.com (8.9.3/8.9.3) id NAA10402 for ; Sat, 19 Aug 2000 13:18:51 -0700 (MST) Received: from sessions.phx.primenet.com(206.132.239.114), claiming to be "heorot.lumbercartel.com" via SMTP by smtp04.primenet.com, id smtpdAAAC2a4su; Sat Aug 19 13:18:45 2000 Received: from frankenstein.lumbercartel.com (IDENT:dcs@frankenstein.lumbercartel.com [192.168.6.2]) by heorot.lumbercartel.com (8.9.3/8.8.7) with SMTP id NAA06668 for ; Sat, 19 Aug 2000 13:20:30 -0700 From: "D. C. Sessions" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] code as speech Date: Sat, 19 Aug 2000 13:16:25 -0700 X-Mailer: KMail [version 1.0.29] Content-Type: text/plain References: <200008191923.PAA01779@oobleck.mit.edu> In-Reply-To: <200008191923.PAA01779@oobleck.mit.edu> MIME-Version: 1.0 Message-Id: <00081913195200.27845@frankenstein.lumbercartel.com> Content-Transfer-Encoding: 8bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sat, 19 Aug 2000, Seth Finkelstein wrote: > > Sphere > > It shouldn't be too hard to put together an > > executable which isn't DeCSS itself, but when > > provided a key, such as the first amendment, > > spits out the DeCSS executable. I'm sure > > it would be labelled a device for circumventtion, > > but it would certainly confuse the legal system > > in the process. Name the program Kaplan. > > Umm, like a self-extracting encrypted ZIP archive, with the > first amendement as the encryption key? > > No, I don't think it would confuse the legal system for a > second. Kaplan went much farther: > > C. Linking > > As indicated above, the DMCA reaches links deliberately created by a > web site operator for the purpose of disseminating technology that > enables the user to circumvent access controls on copyrighted works. > The question is whether it may do so consistent with the First > Amendment. > > Observe key words: "for the purpose of disseminating technology" > I think he'll be real unimpressed by any fancy encoding if it's clear > that the end purpose is to get DeCSS as output. Thanks for pointing this out. It's actually a great point. According to this wording, it's the _technology_, not the _mechanism_, of DeCSS that's being prohibited. We need, really soon, to get that English prose description of the decryption algorithm posted to a website, preferably outside of the USA. And then 2600 should get a declaratory clarification from the Court as to whether that's covered by the judgment forbidding linking. -- | Microsoft: "A reputation for releasing inferior software will make | | it more difficult for a software vendor to induce customers to pay | | for new products or new versions of existing products." | +----------- D. C. & M. V. Sessions ----------+ From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 19 18:41:50 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA18708 for dvd-discuss-outgoing; Sat, 19 Aug 2000 18:41:50 -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 SAA18705 for ; Sat, 19 Aug 2000 18:41:48 -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 PAA09763 for ; Sat, 19 Aug 2000 15:41:33 -0700 Received: (from daw@localhost) by blowfish.isaac.cs.berkeley.edu (8.8.7/8.8.7) id PAA16709; Sat, 19 Aug 2000 15:41:43 -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] code as speech Date: 19 Aug 2000 15:41:33 -0700 Organization: A poorly-installed InterNetNews site Lines: 89 Distribution: isaac Message-ID: <8nn2et$ga4$1@blowfish.isaac.cs.berkeley.edu> References: <20000819023146.F12126@lemuria.org> <200008191939.PAA01796@oobleck.mit.edu> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Seth Finkelstein wrote: > Kaplan has *dealt* with this: > > Computer code is expressive. To that extent, it is a matter of First > Amendment concern. But computer code is not purely expressive any > more than the assassination of a political figure is purely a > political statement. Code causes computers to perform desired > functions. Its expressive element no more immunizes its functional > aspects from regulation than the expressive motives of an assassin > immunize the assassin's action. Yes, Kaplan stated his conclusions of law on this topic. But I hope I can express some skepticism over his reasoning. Maybe you can help me understand how to square Kaplan's stated reasons with the following concerns. Consider the following question. Q: Would, under stated Kaplan's reasoning, DeCSS source code become First Amendment protected speech when printed in a textbook? There are only two possible answers: ``yes'', or ``no''. In either case, I argue that the stated reasoning leads to absurdities. If the answer is ``yes'', then it seems to me that Kaplan has a problem. It seems to me that Reno vs. ACLU said expressly that the Internet receives full First Amendment protection. If I understand Reno vs. ACLU correctly, it held that Internet communications are entitled to "the highest protection from governmental intrusion". Holding that DeCSS source is protected when published in ink but not when published online would appear to make a mockery of the Supreme Court's holding. Another way to put Kaplan's argument, assuming he would answer ``yes'' above, is to suggest that that the DMCA bans publication of DeCSS source code on the purely content-neutral basis that its appearance on the Internet enables certain criminal functional aspects. But, if I read the decision correctly, Reno vs. ACLU apparently held that banning online content based on its mere appearance on the Internet cannot properly be justified as a time-place-and-manner restriction. The Internet is not a time, place, or manner. Moreover, Reno vs. ACLU held (if I am understanding it properly) that any such ban must survive the strictest level of scrutiny, not Kaplan's suggested intermediate level of scrutiny. How can these apparently-incompatible points be reconciled? Did I make any mistakes in my interpretation of Reno vs. ACLU? Am I relying too heavily into Reno vs. ACLU and its applicability here? What am I missing? On the other hand, if the answer is ``no'' (i.e., if DeCSS source code may be properly banned under Kaplan's reasoning even when printed on a textbook), Kaplan's stated reasoning would prove too much. Under Kaplan's stated reasoning, it seems that persuasive writing would not be subject to protection under the First Amendment, because persuasive writing serves to perform desired functions (namely, to persuade the reader). Indeed, the more persuasive the writing is, the stronger its function, and under Kaplan's reasoning, the less protection it would receive. We could give plenty of other examples; bomb-making instructions, etc. The problem is that all ink on paper has functional aspects, and the most deserving speech has the most powerful functional aspects. If we say that DeCSS-in-printed-form does not receive First Amendment protection merely because it has functional aspects, then we will also have to conclude that other printed texts do not receive First Amendment protection either, because they too contain functional aspects. That, of course, is an absurd conclusion, which I think cannot be justified. I do not see how the mere fact that ink on paper has functional aspects -- i.e., can move, persuade, inform, or anger the reader -- could properly justify abridging First Amendment protections on it. But this is what Kaplan's reasoning would appear to require, if we do not preserve protection for printed versions of DeCSS source code. How are we to reconcile Kaplan's reasoning with these seemingly fatal objections? Maybe there is some way to refine Kaplan's reasoning so that it survives my concerns. However, Kaplan's decision did not do so; it did not even consider the issue. The decision did not consider any of these nuances. Unless I have misread the decision, I believe that it simply stated flat out that DeCSS source code is undeserving of First Amendment protection, simply because it contains functional aspects. That is a disturbing claim, when left unqualified. On a personal note, I must admit to some disappointment that Kaplan's decision did not persuade through compelling and thorough reasoning, but rather left the impression of simply exercising the power of the court to choose a winner. From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 19 19:32:40 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA19433 for dvd-discuss-outgoing; Sat, 19 Aug 2000 19:32:40 -0400 Received: from mail.world-net.co.nz (mail.world-net.co.nz [203.96.119.27]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id TAA19430 for ; Sat, 19 Aug 2000 19:32:38 -0400 Received: from leopard.lan (nw3-202.world-net.co.nz [202.37.68.202]) by mail.world-net.co.nz (8.9.3/8.9.3) with SMTP id LAA28577 for ; Sun, 20 Aug 2000 11:28:44 +1200 From: Daniel Richards To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] 2600's "list" of mirrors Date: Sun, 20 Aug 2000 11:27:50 +1200 X-Mailer: KMail [version 1.0.29.2] Content-Type: text/plain MIME-Version: 1.0 Message-Id: <00082011293403.01179@leopard.lan> Content-Transfer-Encoding: 8bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Im just curious, now that 2600 isn't allowed to link, what will happen now that they are listing the websites that carry the mirror? http://www.2600.com/news/1999/1227-help.html -- "Your future has arrived, are you ready to go?" From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 19 19:40:50 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA19693 for dvd-discuss-outgoing; Sat, 19 Aug 2000 19:40:50 -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 TAA19690 for ; Sat, 19 Aug 2000 19:40:49 -0400 Received: from mediaone.net (h0060b03c5b8b.ne.mediaone.net [24.128.18.77]) by chmls06.mediaone.net (8.8.7/8.8.7) with ESMTP id TAA22350 for ; Sat, 19 Aug 2000 19:40:49 -0400 (EDT) Message-ID: <399F1B01.C94EC433@mediaone.net> Date: Sat, 19 Aug 2000 19:40:49 -0400 From: Sphere X-Mailer: Mozilla 4.73 [en] (WinNT; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] 2600's "list" of mirrors References: <00082011293403.01179@leopard.lan> Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Daniel Richards wrote: > > Im just curious, now that 2600 isn't allowed to link, what will happen now that > they are listing the websites that carry the mirror? > http://www.2600.com/news/1999/1227-help.html > > -- > "Your future has arrived, are you ready to go?" I assume that the MPAA will bring this up with the court, and that the court will get mad. It's not like Kaplan is unbiased, or anything. -- Sphere. Is DeCSS.c obscene? Why can't I read it? From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 19 19:56:41 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA20242 for dvd-discuss-outgoing; Sat, 19 Aug 2000 19:56:41 -0400 Received: from smtp04.primenet.com (smtp04.primenet.com [206.165.6.134]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id TAA20239 for ; Sat, 19 Aug 2000 19:56:40 -0400 Received: (from daemon@localhost) by smtp04.primenet.com (8.9.3/8.9.3) id QAA26453 for ; Sat, 19 Aug 2000 16:54:52 -0700 (MST) Received: from sessions.phx.primenet.com(206.132.239.114), claiming to be "heorot.lumbercartel.com" via SMTP by smtp04.primenet.com, id smtpdAAAZ1aaLZ; Sat Aug 19 16:54:40 2000 Received: from heorot.lumbercartel.com (IDENT:dcs@frankenstein.lumbercartel.com [192.168.6.2]) by heorot.lumbercartel.com (8.9.3/8.8.7) with SMTP id QAA07337 for ; Sat, 19 Aug 2000 16:56:25 -0700 From: "D. C. Sessions" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] code as speech Date: Sat, 19 Aug 2000 16:35:09 -0700 X-Mailer: KMail [version 1.0.29] Content-Type: text/plain References: <20000819023146.F12126@lemuria.org> <200008191939.PAA01796@oobleck.mit.edu> <8nn2et$ga4$1@blowfish.isaac.cs.berkeley.edu> In-Reply-To: <8nn2et$ga4$1@blowfish.isaac.cs.berkeley.edu> MIME-Version: 1.0 Message-Id: <00081916501500.03314@frankenstein.lumbercartel.com> Content-Transfer-Encoding: 8bit Status: RO X-Status: Q Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sat, 19 Aug 2000, David A. Wagner wrote: > On the other hand, if the answer is ``no'' (i.e., if DeCSS source code > may be properly banned under Kaplan's reasoning even when printed on a > textbook), Kaplan's stated reasoning would prove too much. Under Kaplan's > stated reasoning, it seems that persuasive writing would not be subject > to protection under the First Amendment, because persuasive writing > serves to perform desired functions (namely, to persuade the reader). > Indeed, the more persuasive the writing is, the stronger its function, > and under Kaplan's reasoning, the less protection it would receive. > We could give plenty of other examples; bomb-making instructions, etc. > > The problem is that all ink on paper has functional aspects, and > the most deserving speech has the most powerful functional aspects. > If we say that DeCSS-in-printed-form does not receive First Amendment > protection merely because it has functional aspects, then we will also > have to conclude that other printed texts do not receive First Amendment > protection either, because they too contain functional aspects. That, > of course, is an absurd conclusion, which I think cannot be justified. > > I do not see how the mere fact that ink on paper has functional > aspects -- i.e., can move, persuade, inform, or anger the reader -- > could properly justify abridging First Amendment protections on it. > But this is what Kaplan's reasoning would appear to require, if we do > not preserve protection for printed versions of DeCSS source code. Warning: IANAPL Let us, for the moment, suppose that DeCSS+ contains a novel approach to the problem at hand (in fact, it may -- later). Realizing this, the authors apply for a U.S. Patent on the novel aspects of their invention. The patent application is, of course, ink on paper. Like all patent applications, it is *required* to be functional. Now at this point, the Court is faced with a bit of a dilemma. Does the Court forbid the application for a patent, since the application contains a functional description of a technology which the Court has ordered suppressed? (The Court could order the material unpatentable, as one may not patent means for doing things which are absolutely illegal. Patent law, though, is quite strict on the illegality in that even one legal use carries the day. DMCA does not apply.) If the Court does not order the application suppressed, it is possible that the patent might be issued. At that point, as a matter of the same body of law underlying the Plaintiffs' claims, the functional text will be published. Should the Court order the publication of the patent blocked? (Not just ink and paper, either; the entire USPTO patent database is available in machine-readable form.) It appears, then, that the Court would have to order the suppression of a patent application for a novel and useful invention based on the possibility that it might be used to contravene copyright. This is a case of direct impact on the intellectual property of one party to avoid a conjectural third-party violation of another party's intellectual property. Somehow that doesn't sound like something that will go over well at the appellate level. Now, just on the off-chance that DeCSS+ *might* contain patentable elements, I would REALLY, REALLY suggest that the application be drafted posthaste with the EFF as the assignee on the condition that the patent be the (first?) PGPL patent. It's been discussed already, and this would be a SPLENDID way to start. And, yes, I'll kick in my share of the expenses. -- | Microsoft: "A reputation for releasing inferior software will make | | it more difficult for a software vendor to induce customers to pay | | for new products or new versions of existing products." | +----------- D. C. & M. V. Sessions ----------+ From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 19 20:06:14 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA20383 for dvd-discuss-outgoing; Sat, 19 Aug 2000 20:06:14 -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 UAA20380 for ; Sat, 19 Aug 2000 20:06:13 -0400 Received: from mediaone.net (h0060b03c5b8b.ne.mediaone.net [24.128.18.77]) by chmls05.mediaone.net (8.8.7/8.8.7) with ESMTP id UAA02851 for ; Sat, 19 Aug 2000 20:06:14 -0400 (EDT) Message-ID: <399F20F6.F9D59B9D@mediaone.net> Date: Sat, 19 Aug 2000 20:06:14 -0400 From: Sphere X-Mailer: Mozilla 4.73 [en] (WinNT; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] code as speech References: <20000819023146.F12126@lemuria.org> <200008191939.PAA01796@oobleck.mit.edu> <8nn2et$ga4$1@blowfish.isaac.cs.berkeley.edu> <00081916501500.03314@frankenstein.lumbercartel.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 "D. C. Sessions" wrote: > > On Sat, 19 Aug 2000, David A. Wagner wrote: > > > On the other hand, if the answer is ``no'' (i.e., if DeCSS source code > > may be properly banned under Kaplan's reasoning even when printed on a > > textbook), Kaplan's stated reasoning would prove too much. Under Kaplan's > > stated reasoning, it seems that persuasive writing would not be subject > > to protection under the First Amendment, because persuasive writing > > serves to perform desired functions (namely, to persuade the reader). > > Indeed, the more persuasive the writing is, the stronger its function, > > and under Kaplan's reasoning, the less protection it would receive. > > We could give plenty of other examples; bomb-making instructions, etc. > > > > The problem is that all ink on paper has functional aspects, and > > the most deserving speech has the most powerful functional aspects. > > If we say that DeCSS-in-printed-form does not receive First Amendment > > protection merely because it has functional aspects, then we will also > > have to conclude that other printed texts do not receive First Amendment > > protection either, because they too contain functional aspects. That, > > of course, is an absurd conclusion, which I think cannot be justified. > > > > I do not see how the mere fact that ink on paper has functional > > aspects -- i.e., can move, persuade, inform, or anger the reader -- > > could properly justify abridging First Amendment protections on it. > > But this is what Kaplan's reasoning would appear to require, if we do > > not preserve protection for printed versions of DeCSS source code. > > Warning: IANAPL > > Let us, for the moment, suppose that DeCSS+ contains a novel approach > to the problem at hand (in fact, it may -- later). Realizing this, the authors > apply for a U.S. Patent on the novel aspects of their invention. The patent > application is, of course, ink on paper. Like all patent applications, it is > *required* to be functional. Now at this point, the Court is faced with a bit > of a dilemma. Does the Court forbid the application for a patent, since the > application contains a functional description of a technology which the Court > has ordered suppressed? (The Court could order the material unpatentable, > as one may not patent means for doing things which are absolutely illegal. > Patent law, though, is quite strict on the illegality in that even one legal use > carries the day. DMCA does not apply.) > > If the Court does not order the application suppressed, it is possible that the > patent might be issued. At that point, as a matter of the same body of law > underlying the Plaintiffs' claims, the functional text will be published. Should > the Court order the publication of the patent blocked? (Not just ink and paper, > either; the entire USPTO patent database is available in machine-readable > form.) It appears, then, that the Court would have to order the suppression of > a patent application for a novel and useful invention based on the possibility > that it might be used to contravene copyright. This is a case of direct impact > on the intellectual property of one party to avoid a conjectural third-party > violation of another party's intellectual property. > > Somehow that doesn't sound like something that will go over well at the appellate > level. > > Now, just on the off-chance that DeCSS+ *might* contain patentable elements, > I would REALLY, REALLY suggest that the application be drafted posthaste with > the EFF as the assignee on the condition that the patent be the (first?) PGPL > patent. It's been discussed already, and this would be a SPLENDID way to start. > > And, yes, I'll kick in my share of the expenses. > What's a share? I want to know how much saying "me too" will cost. I'll go $20 without much thought, $50 gets to the point where I have to understand the benefit better. Much over that and I have to be convinced I'm going to see real results. -- Sphere. Is DeCSS.c obscene? Why can't I read it? From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 19 20:06:47 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA20392 for dvd-discuss-outgoing; Sat, 19 Aug 2000 20:06:47 -0400 Received: from mail.lemuria.org (lemuria.borgfelde.ricardo.de [195.244.103.65]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id UAA20388 for ; Sat, 19 Aug 2000 20:06:46 -0400 Received: from lemuria.org by mail.lemuria.org via rsmtp with bsmtp id for ; Sun, 20 Aug 2000 02:00:57 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Received: by lemuria.org via sendmail with stdio id for dvd-discuss@eon.law.harvard.edu; Sun, 20 Aug 2000 01:44:41 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Date: Sun, 20 Aug 2000 01:44:41 +0200 From: Tom Vogt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] code as speech Message-ID: <20000820014441.A16207@lemuria.org> References: <200008191923.PAA01779@oobleck.mit.edu> <00081913195200.27845@frankenstein.lumbercartel.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0pre3i In-Reply-To: <00081913195200.27845@frankenstein.lumbercartel.com> X-Privacy: If you can, please encrypt your mails - finger for key Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu "D. C. Sessions" wrote: > We need, really soon, to get that English prose description of the decryption > algorithm posted to a website, preferably outside of the USA. And then > 2600 should get a declaratory clarification from the Court as to whether that's > covered by the judgment forbidding linking. if someone can get hold of the description, I'll be happy to put it on a special webpage that doesn't contain or even link to decss. -- "The net treats censorship as a malfunction and re-routes around it." (John Gilmore) From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 19 20:06:50 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA20399 for dvd-discuss-outgoing; Sat, 19 Aug 2000 20:06:50 -0400 Received: from mail.lemuria.org (lemuria.borgfelde.ricardo.de [195.244.103.65]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id UAA20396 for ; Sat, 19 Aug 2000 20:06:48 -0400 Received: from lemuria.org by mail.lemuria.org via rsmtp with bsmtp id for ; Sun, 20 Aug 2000 02:00:57 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Received: by lemuria.org via sendmail with stdio id for dvd-discuss@eon.law.harvard.edu; Sun, 20 Aug 2000 01:49:10 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Date: Sun, 20 Aug 2000 01:49:10 +0200 From: Tom Vogt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] 2600's "list" of mirrors Message-ID: <20000820014910.B16207@lemuria.org> References: <00082011293403.01179@leopard.lan> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0pre3i In-Reply-To: <00082011293403.01179@leopard.lan> X-Privacy: If you can, please encrypt your mails - finger for key Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Daniel Richards wrote: > Im just curious, now that 2600 isn't allowed to link, what will happen now that > they are listing the websites that carry the mirror? > http://www.2600.com/news/1999/1227-help.html most likely, MPAA will drag them into court again and get that banned, too. since the intent is clearly to follow the letter of the judgement while mocking the spirit, that shouldn't be difficult. I'm fairly sure 2600 will reply by changing the list to something that SPELLS OUT the URLs - double-u,double-u,double-u,dot,... we've begun moving down a road towards making even talking about decss illegal. the term "thought crime" comes to mind. -- "The net treats censorship as a malfunction and re-routes around it." (John Gilmore) From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 19 20:11:03 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA20551 for dvd-discuss-outgoing; Sat, 19 Aug 2000 20:11:03 -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 UAA20548 for ; Sat, 19 Aug 2000 20:11:02 -0400 Received: from mediaone.net (h0060b03c5b8b.ne.mediaone.net [24.128.18.77]) by chmls05.mediaone.net (8.8.7/8.8.7) with ESMTP id UAA04199 for ; Sat, 19 Aug 2000 20:11:03 -0400 (EDT) Message-ID: <399F2217.EE5687A4@mediaone.net> Date: Sat, 19 Aug 2000 20:11:03 -0400 From: Sphere X-Mailer: Mozilla 4.73 [en] (WinNT; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] code as speech References: <200008191923.PAA01779@oobleck.mit.edu> <00081913195200.27845@frankenstein.lumbercartel.com> <20000820014441.A16207@lemuria.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 Tom Vogt wrote: > > "D. C. Sessions" wrote: > > We need, really soon, to get that English prose description of the decryption > > algorithm posted to a website, preferably outside of the USA. And then > > 2600 should get a declaratory clarification from the Court as to whether that's > > covered by the judgment forbidding linking. > > if someone can get hold of the description, I'll be happy to put it on a > special webpage that doesn't contain or even link to decss. > > -- > "The net treats censorship as a malfunction and re-routes around it." > (John Gilmore) >From a Google search for "DeCSS Gallery": http://www.cs.cmu.edu/~dst/DeCSS/Gallery/plain-english.html -- Sphere. Is DeCSS.c obscene? Why can't I read it? From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 19 20:20:45 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA20821 for dvd-discuss-outgoing; Sat, 19 Aug 2000 20:20:45 -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 UAA20818 for ; Sat, 19 Aug 2000 20:20:44 -0400 Received: from mediaone.net (h0060b03c5b8b.ne.mediaone.net [24.128.18.77]) by chmls05.mediaone.net (8.8.7/8.8.7) with ESMTP id UAA07039 for ; Sat, 19 Aug 2000 20:20:45 -0400 (EDT) Message-ID: <399F245D.F7D57E32@mediaone.net> Date: Sat, 19 Aug 2000 20:20:45 -0400 From: Sphere X-Mailer: Mozilla 4.73 [en] (WinNT; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] 2600's "list" of mirrors References: <00082011293403.01179@leopard.lan> <20000820014910.B16207@lemuria.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 Tom Vogt wrote: > > Daniel Richards wrote: > > Im just curious, now that 2600 isn't allowed to link, what will happen now that > > they are listing the websites that carry the mirror? > > http://www.2600.com/news/1999/1227-help.html > > most likely, MPAA will drag them into court again and get that banned, too. > since the intent is clearly to follow the letter of the judgement while > mocking the spirit, that shouldn't be difficult. > > I'm fairly sure 2600 will reply by changing the list to something that > SPELLS OUT the URLs - double-u,double-u,double-u,dot,... > > we've begun moving down a road towards making even talking about decss > illegal. the term "thought crime" comes to mind. Of course, but that makes it clearly political. We have a much better shot at political speech than commercial speech. (I want it declared religious speech myself...) > -- > "The net treats censorship as a malfunction and re-routes around it." > (John Gilmore) -- Sphere. Is DeCSS.c obscene? Why can't I read it? From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 19 20:31:01 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA21027 for dvd-discuss-outgoing; Sat, 19 Aug 2000 20:31:01 -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 UAA21024 for ; Sat, 19 Aug 2000 20:31:00 -0400 Received: from ppp.anonymizer.com (c01-142.015.popsite.net [64.24.72.142]) by cyberpass.net (8.8.8/8.7.3) with ESMTP id RAA21542; Sat, 19 Aug 2000 17:32:58 -0700 (PDT) Message-Id: <4.3.2.7.2.20000819165345.04a58350@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, 19 Aug 2000 17:29:47 -0700 To: dvd-discuss@eon.law.harvard.edu, dvd-discuss@eon.law.harvard.edu From: "James S. Tyre" Subject: Re: [dvd-discuss] code as speech In-Reply-To: <8nn2et$ga4$1@blowfish.isaac.cs.berkeley.edu> References: <20000819023146.F12126@lemuria.org> <200008191939.PAA01796@oobleck.mit.edu> Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii"; format=flowed Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu At 03:41 PM 8/19/2000 -0700, David A. Wagner wrote: >Seth Finkelstein wrote: > > Kaplan has *dealt* with this: > > > > Computer code is expressive. To that extent, it is a matter of First > > Amendment concern. But computer code is not purely expressive any > > more than the assassination of a political figure is purely a > > political statement. Code causes computers to perform desired > > functions. Its expressive element no more immunizes its functional > > aspects from regulation than the expressive motives of an assassin > > immunize the assassin's action. > >Yes, Kaplan stated his conclusions of law on this topic. But I hope >I can express some skepticism over his reasoning. Maybe you can help >me understand how to square Kaplan's stated reasons with the following >concerns. > >Consider the following question. > Q: Would, under stated Kaplan's reasoning, DeCSS source code become > First Amendment protected speech when printed in a textbook? >There are only two possible answers: ``yes'', or ``no''. In either case, >I argue that the stated reasoning leads to absurdities. > > >If the answer is ``yes'', then it seems to me that Kaplan has a problem. >It seems to me that Reno vs. ACLU said expressly that the Internet >receives full First Amendment protection. If I understand Reno vs. ACLU >correctly, it held that Internet communications are entitled to "the >highest protection from governmental intrusion". Holding that DeCSS >source is protected when published in ink but not when published online >would appear to make a mockery of the Supreme Court's holding. > >Another way to put Kaplan's argument, assuming he would answer ``yes'' >above, is to suggest that that the DMCA bans publication of DeCSS source >code on the purely content-neutral basis that its appearance on the >Internet enables certain criminal functional aspects. But, if I read the >decision correctly, Reno vs. ACLU apparently held that banning online >content based on its mere appearance on the Internet cannot properly >be justified as a time-place-and-manner restriction. The Internet is >not a time, place, or manner. Moreover, Reno vs. ACLU held (if I am >understanding it properly) that any such ban must survive the strictest >level of scrutiny, not Kaplan's suggested intermediate level of scrutiny. >How can these apparently-incompatible points be reconciled? > >Did I make any mistakes in my interpretation of Reno vs. ACLU? Yes. > Am I >relying too heavily into Reno vs. ACLU and its applicability here? Yes. >What am I missing? That Reno did not hold that all speech on the Internet is absolutely protected, or that all Internet speech is entitled to the highest protection; it only held that Internet speech is entitled to no less protection than other speech. Example 1: We know that there are laws specifically focused on threats made against the life of the President of the U.S., even where the threats are only verbal expressions, not tied to any action. Suppose, hypothetically, I were to say that I intend to kill President Whatshisname (no real names, mind you, lest lurkers misinterpret this as a real threat ;-) Am I entitled to any more First Amendment protection because (hypothetically) I made the statement on the Internet than if I made it at a public meeting? No, but I'm entitled to no less protection either. Example 2: Suppose that the National Inquisitor prints that California attorney James S. Tyre is a convicted felon, who should be disbarred immediately, and OBTW, he's a child rapist too. Could I successfully sue for libel, assuming, hypothetically, that it ain't so? Yes. If, instead of printing it on fishwrap, the Inquisitor published it to their website, would they be insulated from liability? No. Example 3: John Old (hypothetically) orders a hit on the man who once said "I sleep better every night just knowing that LBJ is my President." (For those of us old enough to remember, it taught us a great deal about the man before you young pups were even birthed.) Is Mr. Old's potential criminal liability any greater, or less, because he ordered the (hypothetical) hit by e-mail rather than by snail mail or telephone? No. What Reno said: if it's lawful in meatspace, it's lawful on the Net. What Reno implied: if it's not lawful in meatspace, it's not lawful on the Net. Speech can have legal consequences, regardless of the medium in which the speech is made. And regardless of the medium, not all speech is entitled to the benefit of strict scrutiny analysis. I'm not saying that Kaplan is right, just showing where your reliance on Reno is too great. -------------------------------------------------------------------- James S. Tyre mailto:jstyre@jstyre.com 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 Aug 19 20:33:32 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA21229 for dvd-discuss-outgoing; Sat, 19 Aug 2000 20:33:32 -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 UAA21226 for ; Sat, 19 Aug 2000 20:33:31 -0400 Received: from ppp.anonymizer.com (c01-142.015.popsite.net [64.24.72.142]) by cyberpass.net (8.8.8/8.7.3) with ESMTP id RAA21980; Sat, 19 Aug 2000 17:35:42 -0700 (PDT) Message-Id: <4.3.2.7.2.20000819173203.00b192b0@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, 19 Aug 2000 17:33:24 -0700 To: dvd-discuss@eon.law.harvard.edu, dvd-discuss@eon.law.harvard.edu From: "James S. Tyre" Subject: Re: [dvd-discuss] 2600's "list" of mirrors In-Reply-To: <00082011293403.01179@leopard.lan> 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 11:27 AM 8/20/2000 +1200, Daniel Richards wrote: >Im just curious, now that 2600 isn't allowed to link, what will happen now >that >they are listing the websites that carry the mirror? >http://www.2600.com/news/1999/1227-help.html It is 100% legal under Kaplan's Judgment. Whether the Plaintiffs will seek to modify the Judgment is a different issue. -------------------------------------------------------------------- James S. Tyre mailto:jstyre@jstyre.com 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 Aug 19 20:51:48 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA22103 for dvd-discuss-outgoing; Sat, 19 Aug 2000 20:51:48 -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 UAA22100 for ; Sat, 19 Aug 2000 20:51:32 -0400 Received: from Jana-Server (user-38lcmlf.dialup.mindspring.com [209.86.90.175]) by tisch.mail.mindspring.net (8.9.3/8.8.5) with SMTP id UAA05087 for ; Sat, 19 Aug 2000 20:51:28 -0400 (EDT) Message-ID: <399F2BCA.FD76F8CB@mindspring.com> Date: Sat, 19 Aug 2000 20:52:26 -0400 From: mickeym X-Mailer: Mozilla 4.7 [en] (Win95; I) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] 2600's "list" of mirrors Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Tom Vogt wrote: > > Daniel Richards wrote: > > Im just curious, now that 2600 isn't allowed to link, what will happen now that > > they are listing the websites that carry the mirror? > > http://www.2600.com/news/1999/1227-help.html > > most likely, MPAA will drag them into court again and get that banned, too. > since the intent is clearly to follow the letter of the judgement while > mocking the spirit, that shouldn't be difficult. > > I'm fairly sure 2600 will reply by changing the list to something that > SPELLS OUT the URLs - double-u,double-u,double-u,dot,... or, they could make links to pass arguments to popular search engines which will, in turn, respond with links. Links to meta-searchers are especially abstract. Sophistry? Not really, just a funny way to demonstrate the irony of the situation. It could look like this: http://www.mindspring.com/~mickeym/irony.htm mickeym ym From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 19 20:55:51 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA22193 for dvd-discuss-outgoing; Sat, 19 Aug 2000 20:55:51 -0400 Received: from smtp04.primenet.com (smtp04.primenet.com [206.165.6.134]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id UAA22184 for ; Sat, 19 Aug 2000 20:55:50 -0400 Received: (from daemon@localhost) by smtp04.primenet.com (8.9.3/8.9.3) id RAA06233 for ; Sat, 19 Aug 2000 17:54:03 -0700 (MST) Received: from sessions.phx.primenet.com(206.132.239.114), claiming to be "heorot.lumbercartel.com" via SMTP by smtp04.primenet.com, id smtpdAAA29a4im; Sat Aug 19 17:54:00 2000 Received: from frankenstein.lumbercartel.com (IDENT:dcs@frankenstein.lumbercartel.com [192.168.6.2]) by heorot.lumbercartel.com (8.9.3/8.8.7) with SMTP id RAA07730 for ; Sat, 19 Aug 2000 17:55:44 -0700 From: "D. C. Sessions" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] 2600's "list" of mirrors Date: Sat, 19 Aug 2000 17:43:49 -0700 X-Mailer: KMail [version 1.0.29] Content-Type: text/plain References: <00082011293403.01179@leopard.lan> <20000820014910.B16207@lemuria.org> In-Reply-To: <20000820014910.B16207@lemuria.org> MIME-Version: 1.0 Message-Id: <00081917533501.03387@frankenstein.lumbercartel.com> Content-Transfer-Encoding: 8bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sat, 19 Aug 2000, Tom Vogt wrote: > Daniel Richards wrote: > > Im just curious, now that 2600 isn't allowed to link, what will happen now that > > they are listing the websites that carry the mirror? > > http://www.2600.com/news/1999/1227-help.html > > most likely, MPAA will drag them into court again and get that banned, too. > since the intent is clearly to follow the letter of the judgement while > mocking the spirit, that shouldn't be difficult. > > I'm fairly sure 2600 will reply by changing the list to something that > SPELLS OUT the URLs - double-u,double-u,double-u,dot,... > > we've begun moving down a road towards making even talking about decss > illegal. the term "thought crime" comes to mind. It's more than mocking the spirit. Backing slowly down the progression of 2600 to "http://www.2600.com" to "www.2600.com" to "2600.com's website" to "the website maintained by online magazine 2600" forces Kaplan to deal with the fundamental idiocy of trying to draw a hard line between expressive text and function. The hyperlink is semantically IDENTICAL to the last expression; it's just more concise and convenient. About like the reason that legalese is not colloquial English. So does that mean that Supreme Court decisions are protected less strictly than other speech? (Dang but I'd love to see that one argued....) At the end of that particular slippery slope is the point we've been warning about and Kaplan dismissed: forbidding Corley from ever even MENTIONING the existence of DeCSS. Which is, purely, prior restraint of the Press in the particular matter of covering news. And they're back to going after the New York Times. Or not, which is at least as damning. Which reminds -- is there any way to drag the NYT in? The Plaintiffs are obviously not stupid enough to try to get an order censoring the NYT, and the NYT doesn't seem interested in asking for a declaratory judgment. Pity. -- | Microsoft: "A reputation for releasing inferior software will make | | it more difficult for a software vendor to induce customers to pay | | for new products or new versions of existing products." | +----------- D. C. & M. V. Sessions ----------+ From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 19 20:55:51 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA22189 for dvd-discuss-outgoing; Sat, 19 Aug 2000 20:55:51 -0400 Received: from smtp02.primenet.com (smtp02.primenet.com [206.165.6.132]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id UAA22182 for ; Sat, 19 Aug 2000 20:55:50 -0400 Received: (from daemon@localhost) by smtp02.primenet.com (8.9.3/8.9.3) id RAA22210 for ; Sat, 19 Aug 2000 17:53:46 -0700 (MST) Received: from sessions.phx.primenet.com(206.132.239.114), claiming to be "heorot.lumbercartel.com" via SMTP by smtp02.primenet.com, id smtpdAAArJaGvR; Sat Aug 19 17:53:42 2000 Received: from frankenstein.lumbercartel.com (IDENT:dcs@frankenstein.lumbercartel.com [192.168.6.2]) by heorot.lumbercartel.com (8.9.3/8.8.7) with SMTP id RAA07727 for ; Sat, 19 Aug 2000 17:55:44 -0700 From: "D. C. Sessions" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] code as speech Date: Sat, 19 Aug 2000 17:39:04 -0700 X-Mailer: KMail [version 1.0.29] Content-Type: text/plain References: <20000819023146.F12126@lemuria.org> <00081916501500.03314@frankenstein.lumbercartel.com> <399F20F6.F9D59B9D@mediaone.net> In-Reply-To: <399F20F6.F9D59B9D@mediaone.net> MIME-Version: 1.0 Message-Id: <00081917420200.03387@frankenstein.lumbercartel.com> Content-Transfer-Encoding: 8bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sat, 19 Aug 2000, Sphere wrote: > "D. C. Sessions" wrote: > > Now, just on the off-chance that DeCSS+ *might* contain patentable elements, > > I would REALLY, REALLY suggest that the application be drafted posthaste with > > the EFF as the assignee on the condition that the patent be the (first?) PGPL > > patent. It's been discussed already, and this would be a SPLENDID way to start. > > > > And, yes, I'll kick in my share of the expenses. > > What's a share? I want to know how much > saying "me too" will cost. I'll go $20 > without much thought, $50 gets to the point > where I have to understand the benefit > better. Much over that and I have to be > convinced I'm going to see real results. That obviously depends, but lately the bills for the whole process seem to be running around US$15,000. The usual way to handle this kind of thing in a public-benefit situation is just kick in whatever you can to the EFF with a letter stating that you want it applied as far as possible to a particular purpose. WIth most charities you can express a preference but not make the contribution conditional. -- | Microsoft: "A reputation for releasing inferior software will make | | it more difficult for a software vendor to induce customers to pay | | for new products or new versions of existing products." | +----------- D. C. & M. V. Sessions ----------+ From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 19 20:57:33 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA22271 for dvd-discuss-outgoing; Sat, 19 Aug 2000 20:57:33 -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 UAA22268 for ; Sat, 19 Aug 2000 20:57:32 -0400 Received: from mediaone.net (h0060b03c5b8b.ne.mediaone.net [24.128.18.77]) by chmls06.mediaone.net (8.8.7/8.8.7) with ESMTP id UAA12996 for ; Sat, 19 Aug 2000 20:57:32 -0400 (EDT) Message-ID: <399F2CFD.A94FDBD@mediaone.net> Date: Sat, 19 Aug 2000 20:57:33 -0400 From: Sphere X-Mailer: Mozilla 4.73 [en] (WinNT; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] 2600's "list" of mirrors References: <399F2BCA.FD76F8CB@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 mickeym wrote: > ... > It could look like this: > http://www.mindspring.com/~mickeym/irony.htm Uh. Could you change your font and/or background colors? Light green on light purple is pretty much the same as encryption on my monitor. (I get the idea though.) > mickeym > > ym -- Sphere. Is DeCSS.c obscene? Why can't I read it? From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 19 21:06:04 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA22325 for dvd-discuss-outgoing; Sat, 19 Aug 2000 21:06:04 -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 VAA22322 for ; Sat, 19 Aug 2000 21:06:03 -0400 Received: from mediaone.net (h0060b03c5b8b.ne.mediaone.net [24.128.18.77]) by chmls06.mediaone.net (8.8.7/8.8.7) with ESMTP id VAA15546 for ; Sat, 19 Aug 2000 21:06:03 -0400 (EDT) Message-ID: <399F2EFB.83AE3B4A@mediaone.net> Date: Sat, 19 Aug 2000 21:06:03 -0400 From: Sphere X-Mailer: Mozilla 4.73 [en] (WinNT; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] code as speech References: <20000819023146.F12126@lemuria.org> <00081916501500.03314@frankenstein.lumbercartel.com> <399F20F6.F9D59B9D@mediaone.net> <00081917420200.03387@frankenstein.lumbercartel.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 "D. C. Sessions" wrote: > > On Sat, 19 Aug 2000, Sphere wrote: > > "D. C. Sessions" wrote: > > > > Now, just on the off-chance that DeCSS+ *might* contain patentable elements, > > > I would REALLY, REALLY suggest that the application be drafted posthaste with > > > the EFF as the assignee on the condition that the patent be the (first?) PGPL > > > patent. It's been discussed already, and this would be a SPLENDID way to start. > > > > > > And, yes, I'll kick in my share of the expenses. > > > > What's a share? I want to know how much > > saying "me too" will cost. I'll go $20 > > without much thought, $50 gets to the point > > where I have to understand the benefit > > better. Much over that and I have to be > > convinced I'm going to see real results. > > That obviously depends, but lately the bills for the whole process > seem to be running around US$15,000. The usual way to handle > this kind of thing in a public-benefit situation is just kick in whatever > you can to the EFF with a letter stating that you want it applied as > far as possible to a particular purpose. WIth most charities you can > express a preference but not make the contribution conditional. Fine. You get $20 as soon as the eff has a place for me to enter the number and my card # (I assume I'll have to do that again), $50 if by then I understand the benefit better and think it makes sense, maybe more if by then I think you've got a chance in Hell. Personally, I think a few burned DNS names has a better chance in this game. -- Sphere. Is DeCSS.c obscene? Why can't I read it? From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 19 21:09:08 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA22455 for dvd-discuss-outgoing; Sat, 19 Aug 2000 21:09:08 -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 VAA22452 for ; Sat, 19 Aug 2000 21:09:07 -0400 Received: from Jana-Server (user-38lcmlf.dialup.mindspring.com [209.86.90.175]) by blount.mail.mindspring.net (8.9.3/8.8.5) with SMTP id VAA14095 for ; Sat, 19 Aug 2000 21:09:03 -0400 (EDT) Message-ID: <399F3003.72DACA79@mindspring.com> Date: Sat, 19 Aug 2000 21:10:27 -0400 From: mickeym X-Mailer: Mozilla 4.7 [en] (Win95; I) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] 2600's "list" of mirrors Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > > > mickeym wrote: > > > ... > > It could look like this: > > http://www.mindspring.com/~mickeym/irony.htm > > > Uh. Could you change your font and/or background > colors? Light green on light purple is pretty > much the same as encryption on my monitor. > > (I get the idea though.) > Fixed it. Sorry, my screen has no blue gun left.... mickeym ym From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 19 21:16:33 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA22526 for dvd-discuss-outgoing; Sat, 19 Aug 2000 21:16:33 -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 VAA22523 for ; Sat, 19 Aug 2000 21:16:32 -0400 Received: from mediaone.net (h0060b03c5b8b.ne.mediaone.net [24.128.18.77]) by chmls06.mediaone.net (8.8.7/8.8.7) with ESMTP id VAA18303 for ; Sat, 19 Aug 2000 21:16:32 -0400 (EDT) Message-ID: <399F3171.3FBB408A@mediaone.net> Date: Sat, 19 Aug 2000 21:16:33 -0400 From: Sphere X-Mailer: Mozilla 4.73 [en] (WinNT; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] 2600's "list" of mirrors References: <00082011293403.01179@leopard.lan> <20000820014910.B16207@lemuria.org> <00081917533501.03387@frankenstein.lumbercartel.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 "D. C. Sessions" wrote: > > On Sat, 19 Aug 2000, Tom Vogt wrote: > > Daniel Richards wrote: > > > Im just curious, now that 2600 isn't allowed to link, what will happen now that > > > they are listing the websites that carry the mirror? > > > http://www.2600.com/news/1999/1227-help.html > > > > most likely, MPAA will drag them into court again and get that banned, too. > > since the intent is clearly to follow the letter of the judgement while > > mocking the spirit, that shouldn't be difficult. > > > > I'm fairly sure 2600 will reply by changing the list to something that > > SPELLS OUT the URLs - double-u,double-u,double-u,dot,... > > > > we've begun moving down a road towards making even talking about decss > > illegal. the term "thought crime" comes to mind. > > It's more than mocking the spirit. Backing slowly down the progression > of 2600 to "http://www.2600.com" to > "www.2600.com" to "2600.com's website" to "the website maintained by > online magazine 2600" forces Kaplan to deal with the fundamental > idiocy of trying to draw a hard line between expressive text and function. > > The hyperlink is semantically IDENTICAL to the last expression; it's just > more concise and convenient. About like the reason that legalese is not > colloquial English. So does that mean that Supreme Court decisions are > protected less strictly than other speech? (Dang but I'd love to see that > one argued....) At the end of that particular slippery slope is the point > we've been warning about and Kaplan dismissed: forbidding Corley from > ever even MENTIONING the existence of DeCSS. Which is, purely, prior > restraint of the Press in the particular matter of covering news. And they're > back to going after the New York Times. Or not, which is at least as damning. We let it be dragged. What other reasonable shoice do we have? > Which reminds -- is there any way to drag the NYT in? The Plaintiffs are > obviously not stupid enough to try to get an order censoring the NYT, and > the NYT doesn't seem interested in asking for a declaratory judgment. Pity. > Of course not. Is NYT still providing DeCSS source? If so, what happens if 2600 links to that? -- Sphere. Is DeCSS.c obscene? Why can't I read it? From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 19 21:21:29 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA22623 for dvd-discuss-outgoing; Sat, 19 Aug 2000 21:21:29 -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 VAA22620 for ; Sat, 19 Aug 2000 21:21:28 -0400 Received: from mediaone.net (h0060b03c5b8b.ne.mediaone.net [24.128.18.77]) by chmls06.mediaone.net (8.8.7/8.8.7) with ESMTP id VAA19565 for ; Sat, 19 Aug 2000 21:21:29 -0400 (EDT) Message-ID: <399F3299.EAE216DA@mediaone.net> Date: Sat, 19 Aug 2000 21:21:29 -0400 From: Sphere X-Mailer: Mozilla 4.73 [en] (WinNT; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] 2600's "list" of mirrors References: <399F3003.72DACA79@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 mickeym wrote: > > > > > > > mickeym wrote: > > > > > ... > > > It could look like this: > > > http://www.mindspring.com/~mickeym/irony.htm > > > > > > Uh. Could you change your font and/or background > > colors? Light green on light purple is pretty > > much the same as encryption on my monitor. > > > > (I get the idea though.) > > > Fixed it. Sorry, my screen has no blue gun left.... > > mickeym > > ym A link already followed almost disappears, but good enough. -- Sphere. Is DeCSS.c obscene? Why can't I read it? From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 19 22:30:11 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA22901 for dvd-discuss-outgoing; Sat, 19 Aug 2000 22:30:11 -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 WAA22898 for ; Sat, 19 Aug 2000 22:30:10 -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 TAA10260 for ; Sat, 19 Aug 2000 19:29:55 -0700 Received: (from daw@localhost) by blowfish.isaac.cs.berkeley.edu (8.8.7/8.8.7) id TAA17219; Sat, 19 Aug 2000 19:30:05 -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] code as speech Date: 19 Aug 2000 19:28:57 -0700 Organization: A poorly-installed InterNetNews site Lines: 103 Distribution: isaac Message-ID: <8nnfp9$gq1$1@blowfish.isaac.cs.berkeley.edu> References: <20000819023146.F12126@lemuria.org> <200008191939.PAA01796@oobleck.mit.edu> <4.3.2.7.2.20000819165345.04a58350@127.0.0.1> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Many thanks for helping me to understand. But I must admit I don't think you answered quite the question I was asking; I must not have stated it clearly enough, for which I apologize. See below: James S. Tyre wrote: > At 03:41 PM 8/19/2000 -0700, David A. Wagner wrote: > > > "Code causes computers to perform desired > > > functions. Its expressive element no more immunizes its functional > > > aspects from regulation than the expressive motives of an assassin > > > immunize the assassin's action." --Kaplan > > > >Consider the following question. > > Q: Would, under stated Kaplan's reasoning, DeCSS source code become > > First Amendment protected speech when printed in a textbook? > > > >If the answer is ``yes'', then it seems to me that Kaplan has a problem. > >It seems to me that Reno vs. ACLU said expressly that the Internet > >receives full First Amendment protection. If I understand Reno vs. ACLU > >correctly, it held that Internet communications are entitled to "the > >highest protection from governmental intrusion". Holding that DeCSS > >source is protected when published in ink but not when published online > >would appear to make a mockery of the Supreme Court's holding. [...] > >Did I make any mistakes in my interpretation of Reno vs. ACLU? > > Yes. [...] > >What am I missing? > > That Reno did not hold that all speech on the Internet is absolutely > protected, or that all Internet speech is entitled to the highest > protection; it only held that Internet speech is entitled to no less > protection than other speech. Of course not. I certainly am not under any illusion that speech is absolutely protected; merely that regulation must satisfy some appropriate level of scrutiny (which might be quite strict or quite permissive). I apologize for not setting my argument out more clearly. Maybe I can try to clarify. I was trying to make a more nuanced point. Kaplan claimed that banning DeCSS source code requires only an intermediate level of scrutiny. I was trying to ascertain whether he was basing this claim purely on the fact that DeCSS source was published on the Internet (as opposed to being published in print, say). I wanted to know whether his level of scrutiny analysis rests on the medium where DeCSS was published, or whether he found the medium irrelevant. So I asked a hypothetical question. I ask: Would DeCSS receive a higher level of protection in print than on the Internet? My thoroughly untrained and unreliable reading of Reno vs. ACLU suggests -- to this uninformed non-lawyer -- that the answer ``yes'' to this question would be in conflict with Reno vs. ACLU. So, if we believe Reno vs. ACLU is the law of the land, then we cannot properly answer ``yes, DeCSS gets more protection in print than on the net''. The only proper answer is ``no, DeCSS gets just as much protection on the net as it would anywhere else''. Now, I gave some other argument to suggest that if we answer ``no'', that this too appears to lead to absurd results, under Kaplan's reasoning. I'm trying to suggest that Kaplan is between a rock and a hard place. But we don't need to consider the ``no'' case, because you only raised an issue with my claim that Reno vs. ACLU says a ``yes'' answer is not permitted. So let's get back to why I think Reno vs. ACLU is incompatible with a ``yes'' answer. Note particularly the quote from Reno vs. ACLU which says that Internet content is entitled to "the highest protection from governmental intrusion". If Kaplan were to argue that banning Internet publication of DeCSS source receives intermediate scrutiny, but banning publication of DeCSS source in print receives strict scrutiny, we would have a crazy situation on our hands that I find hard to reconcile with the quote from Reno vs. ACLU. Surely strict scrutiny is a higher level of protection than intermediate scrutiny. Surely banning publication of DeCSS source code would count as govermental intrusion. Yet this is just about the situation we would be in, if we answer ``yes'' to my question. Kaplan did argue that his decision requires only intermediate scrutiny; if he were to argue that extending the ban to printed matter would require a higher level of scrutiny -- say, strict scrutiny -- then this would appear to be contrary to the words of Reno vs. ACLU. In other words, what I'm saying is that if Kaplan thinks it is ok to ban DeCSS on the net (without contradicting the First Amendment), then according to Reno vs. ACLU, we'd better also accept that it is ok to ban DeCSS in textbooks and other printed matter, and just about every medium around. [ And then, in the second half of my email, I went on to argue that if we accept that DeCSS can be banned in every medium around merely because it has functional aspects, then we end up with an argument that proves too much -- an argument that could be used to ban not merely DeCSS but just about every form of speech, even the `pure speech' that everyone would find most deserving of protection. But this is tangential. ] Now, maybe I'm spouting nonsense or something. Almost certainly, there must be some serious flaws in my argument. But I'm honestly interested to learn where I went wrong, and I don't yet see how your email was relevant to my argument. I would truly appreciate any hints you might have. If the answer is "RTFM", I'll gladly do my homework before pestering this mailing list any further, if you can give me a pointer to what I ought to read. Thanks again for your comments. From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 19 23:33:55 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA24108 for dvd-discuss-outgoing; Sat, 19 Aug 2000 23:33:55 -0400 Received: from duckman.distro.conectiva (brutus.conectiva.com.br [200.250.58.146]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id XAA24105 for ; Sat, 19 Aug 2000 23:33:51 -0400 Received: from localhost (riel@localhost) by duckman.distro.conectiva (8.9.3/8.8.7) with ESMTP id AAA30595 for ; Sun, 20 Aug 2000 00:33:46 -0300 X-Authentication-Warning: duckman.distro.conectiva: riel owned process doing -bs Date: Sun, 20 Aug 2000 00:33:46 -0300 (BRST) From: Rik van Riel X-Sender: riel@duckman.distro.conectiva To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Kaplan Enjoins 2600 from Posting and Linking In-Reply-To: <20000817145058.A15049@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, 17 Aug 2000, Eric Seppanen wrote: > On Thu, Aug 17, 2000 at 03:18:40PM -0400, Jeremy Erwin wrote: > > > > I was reading the order, and came across the following statements: > > > > (3)(c) "DeCSS" means any computer program, file or device that may be used > > to decrypt or unscramble the contents of DVDs that are protected, or > > otherwise to circumvent the protection afforded, by CSS and that permits > > the copying of the contents or any portion thereof. > > and > > [Defendents et al. are enjoined from] > > Now this really pisses me off. The fact that the temporary injunction > enjoins "any computer program ... that MAY be used to decrypt" (in other > words, _any_ unlicensed implementation, including LiViD) has been known on > this list for months and months. Why didn't the defense dispute this > wording? > > Now the MPAA has an avenue to go around bulling anyone offering > the LiVid project files, Not "anyone", just the poor folks who happen to live in "the land of the free" ... The rest of the world shouldn't be affected by this decision and LiVid development should be able to continue. Rik -- "What you're running that piece of shit Gnome?!?!" -- Miguel de Icaza, UKUUG 2000 http://www.conectiva.com/ http://www.surriel.com/ From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 19 23:57:12 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA24392 for dvd-discuss-outgoing; Sat, 19 Aug 2000 23:57:12 -0400 Received: from smtp05.primenet.com (smtp05.primenet.com [206.165.6.135]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id XAA24389 for ; Sat, 19 Aug 2000 23:57:11 -0400 Received: (from daemon@localhost) by smtp05.primenet.com (8.9.3/8.9.3) id UAA06518 for ; Sat, 19 Aug 2000 20:57:18 -0700 (MST) Received: from sessions.phx.primenet.com(206.132.239.114), claiming to be "heorot.lumbercartel.com" via SMTP by smtp05.primenet.com, id smtpdAAA4paWTm; Sat Aug 19 20:57:11 2000 Received: from frankenstein.lumbercartel.com (IDENT:dcs@frankenstein.lumbercartel.com [192.168.6.2]) by heorot.lumbercartel.com (8.9.3/8.8.7) with SMTP id UAA09280 for ; Sat, 19 Aug 2000 20:57:02 -0700 From: "D. C. Sessions" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] code as speech Date: Sat, 19 Aug 2000 20:07:28 -0700 X-Mailer: KMail [version 1.0.29] Content-Type: text/plain References: <20000819023146.F12126@lemuria.org> <4.3.2.7.2.20000819165345.04a58350@127.0.0.1> <8nnfp9$gq1$1@blowfish.isaac.cs.berkeley.edu> In-Reply-To: <8nnfp9$gq1$1@blowfish.isaac.cs.berkeley.edu> MIME-Version: 1.0 Message-Id: <00081920114200.03529@frankenstein.lumbercartel.com> Content-Transfer-Encoding: 8bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sat, 19 Aug 2000, David A. Wagner wrote: > Many thanks for helping me to understand. But I must admit I don't > think you answered quite the question I was asking; I must not have > stated it clearly enough, for which I apologize. See below: > > James S. Tyre wrote: > > At 03:41 PM 8/19/2000 -0700, David A. Wagner wrote: > > > > "Code causes computers to perform desired > > > > functions. Its expressive element no more immunizes its functional > > > > aspects from regulation than the expressive motives of an assassin > > > > immunize the assassin's action." --Kaplan > > > > > >Consider the following question. > > > Q: Would, under stated Kaplan's reasoning, DeCSS source code become > > > First Amendment protected speech when printed in a textbook? Quite a bit less hypothetically, how about a T-shirt? The Court will have an extremely hard time arguing that the t-shirts are primarily functional (well, they do protect somewhat against the elements and do preserve decency, but that's not the point.) The Court will have a very hard time arguing that the t-shirts make any measurable difference in the dissemination of DeCSS. They are as nearly pure political speech as it is possible to have outside of an address to Congress. So, can we get a declaratory judgment on whether the t-shirts are covered by the "and anybody else, too" language of the injunction? -- | Microsoft: "A reputation for releasing inferior software will make | | it more difficult for a software vendor to induce customers to pay | | for new products or new versions of existing products." | +----------- D. C. & M. V. Sessions ----------+ From dvd-discuss-owner@eon.law.harvard.edu Sun Aug 20 00:12:30 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA24594 for dvd-discuss-outgoing; Sun, 20 Aug 2000 00:12:30 -0400 Received: from localhost (wseltzer@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id AAA24591 for ; Sun, 20 Aug 2000 00:12:29 -0400 Date: Sun, 20 Aug 2000 00:12:29 -0400 (EDT) From: Wendy Seltzer To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] code as speech In-Reply-To: <8nnfp9$gq1$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 19 Aug 2000, David A. Wagner wrote: > James S. Tyre wrote: > > At 03:41 PM 8/19/2000 -0700, David A. Wagner wrote: > > > > "Code causes computers to perform desired > > > > functions. Its expressive element no more immunizes its functional > > > > aspects from regulation than the expressive motives of an assassin > > > > immunize the assassin's action." --Kaplan > > > > > >Consider the following question. > > > Q: Would, under stated Kaplan's reasoning, DeCSS source code become > > > First Amendment protected speech when printed in a textbook? > > > > > >If the answer is ``yes'', then it seems to me that Kaplan has a problem. > > >It seems to me that Reno vs. ACLU said expressly that the Internet > > >receives full First Amendment protection. If I understand Reno vs. ACLU > > >correctly, it held that Internet communications are entitled to "the > > >highest protection from governmental intrusion". Holding that DeCSS > > >source is protected when published in ink but not when published online > > >would appear to make a mockery of the Supreme Court's holding. > [...] > > >Did I make any mistakes in my interpretation of Reno vs. ACLU? > > > > Yes. I'm not so sure. The disease metaphor that infected Kaplan's decision seemed to stem from an assumption that the Internet is different -- a place or medium that demands a different analysis because anything posted to the Net is bound to be downloaded and used. 2600's speech gets less protection because even if The Hacker Quarterly simply wants to speak in C, "the only rational assumption is that once a computer program capable of bypassing such an access control system is disseminated, it will be used." (60) Even though the code-speech has expressive content, on the Net it automatically becomes functional conduct or incitement. Yet a similar argument was made and rejected in Reno v. ACLU: the Internet is different -- it's easier for kids to get porn online than by going into real-world shops -- so (according to Congress) we need stronger restrictions on online content. The Court refused to dumb-down (or clean up) the Internet's speech because of characteristics of the medium. Congress couldn't keep speech from adults entitled to hear it even if the Internet made it easier for kids to hear it at the same time, and even if the speech had little socially redeeming value. Sure, if it's prohibited offline, speech can be prohibited online too, but isn't Kaplan trying to say that code-speech gets less protection on the Net than it would get offline? That seems to violate the letter and spirit of the Reno Court. Plus, Kaplan admits his injunction is overbroad: "Of course, not everyone who obtains DeCSS or some other decryption program necessarily will use it to engage in copyright infringement, just as not everyone who is exposed to a contagious disease contracts it. But that is immaterial." (62 n.214) We can't use technical features as an excuse to limit the Net to speech fit for a sandbox, but we can use them as a justification for keeping computer developers from conversing in code? (Congress can't keep the Net "safe" for kids, but must keep it safe from script kiddies?) > I was trying to make a more nuanced point. Kaplan claimed that banning > DeCSS source code requires only an intermediate level of scrutiny. I was > trying to ascertain whether he was basing this claim purely on the fact > that DeCSS source was published on the Internet (as opposed to being > published in print, say). I wanted to know whether his level of scrutiny > analysis rests on the medium where DeCSS was published, or whether he found > the medium irrelevant. I read the "disease" metaphor and functional analysis of hyperlinks as Kaplan's attempt to use the architecture of the Net to justify lower protection of online speech. Unsurprisingly, I think it's unjustified, blocking the most effective means of communicating ideas because some may misuse them. --Wendy -- Wendy Seltzer wendy@eon.law.harvard.edu || wendy@seltzer.com Fellow, Berkman Center for Internet & Society, Harvard Law School http://cyber.law.harvard.edu/seltzer.html From dvd-discuss-owner@eon.law.harvard.edu Sun Aug 20 01:07:27 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id BAA25196 for dvd-discuss-outgoing; Sun, 20 Aug 2000 01:07:27 -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 BAA25193 for ; Sun, 20 Aug 2000 01:07:26 -0400 Message-ID: <20000820050657.14750.qmail@web512.mail.yahoo.com> Received: from [64.81.25.36] by web512.mail.yahoo.com; Sat, 19 Aug 2000 22:06:57 PDT Date: Sat, 19 Aug 2000 22:06:57 -0700 (PDT) From: Bryan Taylor Subject: [dvd-discuss] Content Based vs. Content Neutral To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I've been reading Kaplan's First Amendment analysis again. Kaplan's reasoning here has raised the stakes considerably, since it rests on extending a lower standard of protection to the precise description of repeatable 'functional' processes. Scientists, it would seem, have become second class speakers under Kaplan's precedent. The judge explains the distinction between strict scrutiny and intermediate scrutiny depends on whether the regulation is "content based" or "content neutral". He then cites US v. O'Brian: “[W]hen ‘speech’ and ‘nonspeech’ elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms.” I see two errors: First, I don't see any 'nonspeech elements' present in publishing code on the internet, nor do I see any 'course of conduct' other than the act of communication. Kaplan seems to equate the posting of code with it's actual use. O'Brian's expression didn't lose full protection until he actually burned his card. Had he written his plan to do so in extreme detail and posted it on the internet, there would not have been any problem. There simply is no 'expressive conduct' in writing a computer program or placing it under the html directory. Perhaps if you bang too loudly on the keyboard as you code, causing property damage and disruption of the peace, this would be 'expressive conduct' similar to O'Brian's. The second flaw is the preposterours, even frightening claim that banning decryption implementations in code is content neutral. It clearly bans code if it's content expresses a workable method for decryption. Kaplan's standard would imply that any output of scientific investigation, namely a complete description of a method or process, could be banned. The goal of science is to describe processes in a way that allows rigorous prediction of what would happen if they were implemented. Computer programming is, after all, an exercise of computer SCIENCE. It seems that Kaplan is adopting a position from which we must conclude that all scientific discourse is protected only by intermediate scrutiny, since, Kaplan would find that the functionality of the process under study would then provides "content neutral" hooks to enjoin descriptions thereof. Kaplan confuses the map with the territory. __________________________________________________ Do You Yahoo!? Yahoo! Mail – Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Sun Aug 20 02:08:12 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id CAA25584 for dvd-discuss-outgoing; Sun, 20 Aug 2000 02:08:12 -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 CAA25581 for ; Sun, 20 Aug 2000 02:08:00 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id CAA03973 for dvd-discuss@eon.law.harvard.edu; Sun, 20 Aug 2000 02:15:51 -0400 Date: Sun, 20 Aug 2000 02:15:46 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Content Based vs. Content Neutral Message-ID: <20000820021545.A3667@eldritchpress.org> References: <20000820050657.14750.qmail@web512.mail.yahoo.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <20000820050657.14750.qmail@web512.mail.yahoo.com>; from bryan_w_taylor@yahoo.com on Sat, Aug 19, 2000 at 10:06:57PM -0700 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sat, Aug 19, 2000 at 10:06:57PM -0700, Bryan Taylor wrote: > I've been reading Kaplan's First Amendment analysis again. Kaplan's > reasoning here has raised the stakes considerably, since it rests on > extending a lower standard of protection to the precise description of > repeatable 'functional' processes. Scientists, it would seem, have > become second class speakers under Kaplan's precedent. > > The judge explains the distinction between strict scrutiny and > intermediate scrutiny depends on whether the regulation is "content > based" or "content neutral". He then cites US v. O'Brian: > ?[W]hen ?speech? and ?nonspeech? elements are combined in the same > course of conduct, a sufficiently important governmental interest in > regulating the nonspeech element can justify incidental > limitations on First Amendment freedoms.? > > I see two errors: First, I don't see any 'nonspeech elements' present > in publishing code on the internet, nor do I see any 'course of > conduct' other than the act of communication. Kaplan seems to equate > the posting of code with it's actual use. O'Brian's expression didn't > lose full protection until he actually burned his card. Had he written > his plan to do so in extreme detail and posted it on the internet, > there would not have been any problem. In 1966 I tore up my draft card in front of FBI cameras. This was technically against the law. I saw this as a form of political communication. As far as "functional conduct" goes, my act should never have been considered criminal. The Selective Service card I tore up had expired! But if the speech act had been considered just by itself, in isolation from context--as Corley's is here--then according to Kaplan I should have been indicted. And that would have made a travesty of First Amendment scrutiny. There was a long trial of the "Boston Five" I think, including Dr. Benjamin Spock and others who instigated a draft card burning in Arlington Street Church in Boston a few years later. The government was unsuccessful in its attempt to jail them. You are right, Kaplan is having a hard time trying to fit banning a whole technology, some computer code, into the framework of speech being a product of humans, who alone have responsibility and intent and can be therefore punished. But it is his reponsibility to make the distinction properly as the trial judge. The appeal court should be given all the grounds needed to overrule what he has been able to produce. From dvd-discuss-owner@eon.law.harvard.edu Sun Aug 20 02:40:21 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id CAA25741 for dvd-discuss-outgoing; Sun, 20 Aug 2000 02:40:21 -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 CAA25735 for ; Sun, 20 Aug 2000 02:40:19 -0400 Received: from ppp.anonymizer.com (c6T2-171.015.popsite.net [216.126.189.171]) by cyberpass.net (8.8.8/8.7.3) with ESMTP id XAA10570; Sat, 19 Aug 2000 23:42:32 -0700 (PDT) Message-Id: <4.3.2.7.2.20000819231110.00bf4820@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, 19 Aug 2000 23:40:15 -0700 To: dvd-discuss@eon.law.harvard.edu, dvd-discuss@eon.law.harvard.edu From: "James S. Tyre" Subject: Re: [dvd-discuss] code as speech In-Reply-To: <00081920114200.03529@frankenstein.lumbercartel.com> References: <8nnfp9$gq1$1@blowfish.isaac.cs.berkeley.edu> <20000819023146.F12126@lemuria.org> <4.3.2.7.2.20000819165345.04a58350@127.0.0.1> <8nnfp9$gq1$1@blowfish.isaac.cs.berkeley.edu> Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii"; format=flowed Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu At 08:07 PM 8/19/2000 -0700, D. C. Sessions wrote: >On Sat, 19 Aug 2000, David A. Wagner wrote: > > > > > > > > >Consider the following question. > > > > Q: Would, under stated Kaplan's reasoning, DeCSS source code become > > > > First Amendment protected speech when printed in a textbook? > >Quite a bit less hypothetically, how about a T-shirt? > >The Court will have an extremely hard time arguing that the t-shirts are >primarily functional (well, they do protect somewhat against the elements >and do preserve decency, but that's not the point.) The Court will have >a very hard time arguing that the t-shirts make any measurable difference >in the dissemination of DeCSS. They are as nearly pure political speech >as it is possible to have outside of an address to Congress. OK, but you need to throw another factor into the mix here: DMCA does not purport to regulate t-shirts. Yes, you're talking constitution, and the constitution always will trump a statute, but, within limits, a judge is supposed to try to "read" a statute in such a way as to make it constitutional. Consequently, if one removes DMCA from the equation, one cannot necessarily assume that Kaplan's ruling would be the same for a t-shirt. Also, remember that the distinction is not factually unprecedented. Remember that one version of PGP (5.0?) was "internationalized" by sending the source out of the U.S. on paper, then having it scanned, etc., overseas. Of course, _Bernstein_ and _Junger_ found fault with the ITAR regime on a number of grounds, but if memory serves (and often it does not) neither decided the Net v. paper question, and neither was a DMCA case in any event. BTW, t-shirt distribution is an issue in the California state court case, now that copyleft.net has been served. They sell t-shirts with the code, but (I think) they don't distribute the code itself on the Net (unless one can actually read it at http://www.copyleft.net/images/products/249/full_276_back.jpg, which I can't). -------------------------------------------------------------------- James S. Tyre mailto:jstyre@jstyre.com 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 Aug 20 02:40:19 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id CAA25734 for dvd-discuss-outgoing; Sun, 20 Aug 2000 02:40:19 -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 CAA25731 for ; Sun, 20 Aug 2000 02:40:18 -0400 Received: from ppp.anonymizer.com (c6T2-171.015.popsite.net [216.126.189.171]) by cyberpass.net (8.8.8/8.7.3) with ESMTP id XAA10554; Sat, 19 Aug 2000 23:42:26 -0700 (PDT) Message-Id: <4.3.2.7.2.20000819230502.00b19b70@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, 19 Aug 2000 23:15:16 -0700 To: dvd-discuss@eon.law.harvard.edu, dvd-discuss@eon.law.harvard.edu From: "James S. Tyre" Subject: Re: [dvd-discuss] code as speech In-Reply-To: References: <8nnfp9$gq1$1@blowfish.isaac.cs.berkeley.edu> Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii"; format=flowed Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu At 12:12 AM 8/20/2000 -0400, Wendy Seltzer wrote: >On 19 Aug 2000, David A. Wagner wrote: > > James S. Tyre wrote: > > > At 03:41 PM 8/19/2000 -0700, David A. Wagner wrote: > > > > > "Code causes computers to perform desired > > > > > functions. Its expressive element no more immunizes its > functional > > > > > aspects from regulation than the expressive motives of an assassin > > > > > immunize the assassin's action." --Kaplan > > > > > > > >Consider the following question. > > > > Q: Would, under stated Kaplan's reasoning, DeCSS source code become > > > > First Amendment protected speech when printed in a textbook? > > > > > > > >If the answer is ``yes'', then it seems to me that Kaplan has a problem. > > > >It seems to me that Reno vs. ACLU said expressly that the Internet > > > >receives full First Amendment protection. If I understand Reno vs. ACLU > > > >correctly, it held that Internet communications are entitled to "the > > > >highest protection from governmental intrusion". Holding that DeCSS > > > >source is protected when published in ink but not when published online > > > >would appear to make a mockery of the Supreme Court's holding. > > [...] > > > >Did I make any mistakes in my interpretation of Reno vs. ACLU? > > > > > > Yes. > >I'm not so sure. The disease metaphor that infected Kaplan's decision Wendy, I don't disagree with much of what you say. But note that David's question, which I attempted to answer, pertained to his understanding of Reno, while your post pertained to your perceptions of Kaplan's understanding. Different animals. ;-) David, I will respond to your follow-up. I haven't yet because I want to think on it a bit more. -------------------------------------------------------------------- James S. Tyre mailto:jstyre@jstyre.com 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 Aug 20 05:37:08 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id FAA26839 for dvd-discuss-outgoing; Sun, 20 Aug 2000 05:37:08 -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 FAA26830 for ; Sun, 20 Aug 2000 05:36:47 -0400 Received: (from phil@localhost) by ramtop.demon.co.uk (8.9.3/8.9.3) id KAA22025 for dvd-discuss@eon.law.harvard.edu; Sun, 20 Aug 2000 10:25:33 +0100 Date: Sun, 20 Aug 2000 10:25:33 +0100 From: Phil Harrison To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] introduction Message-ID: <20000820102533.A21852@ramtop.demon.co.uk> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <20000818210635.A28207@lemuria.org> <00081906523901.27287@frankenstein.lumbercartel.com> <20000819155255.A19478@ramtop.demon.co.uk> <00081908131600.27457@frankenstein.lumbercartel.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii Content-Disposition: inline User-Agent: Mutt/1.2.5i In-Reply-To: <00081908131600.27457@frankenstein.lumbercartel.com>; from dcs@mailhost.lumbercartel.com on Sat, Aug 19, 2000 at 08:09:49AM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sat, Aug 19, 2000 at 08:09:49AM -0700, D. C. Sessions wrote: > On Sat, 19 Aug 2000, Phil Harrison wrote: > > On Sat, Aug 19, 2000 at 06:50:04AM -0700, D. C. Sessions wrote: > > > > > > [DA] The author shouldn't have required an illegal instrument for > > > access to the content then. Publishing a book in an invisible ink > > > which requires a heroin solution to become readable doesn't bring > > > heroin under the First Amendment. > > > > > But LiViD would only be illegal under the statute if it circumvented, and it can > > only be circumventing if it decrypts without authorisation from the copyright > > holder. If the copyright holder grants authority to decrypt using LiViD, then it > > isn't circumventing. > > [DA] No, LiViD is illegal if it's primarily *intended* to circumvent, or if its main > economic application is circumvention. Since the vast economic majority > of trade in DVDs is from the big studios, if they don't want their disks > played on LiViD then it's a circumvention tool. Which anyone working on > LiViD knows or has every reason to know, so that must be their intention. > Couldn't this be attacked from a freedom of expression angle? If a content provider wished to allow his DVD's to be viewed by existing players and also by free software players, can he be prevented from doing so just because it upsets other copyright holders? -- Phil Harrison From dvd-discuss-owner@eon.law.harvard.edu Sun Aug 20 05:39:11 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id FAA26947 for dvd-discuss-outgoing; Sun, 20 Aug 2000 05:39:11 -0400 Received: from ramtop.demon.co.uk (phil@ramtop.demon.co.uk [194.222.228.63]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id FAA26943 for ; Sun, 20 Aug 2000 05:39:08 -0400 Received: (from phil@localhost) by ramtop.demon.co.uk (8.9.3/8.9.3) id KAA22123 for dvd-discuss@eon.law.harvard.edu; Sun, 20 Aug 2000 10:41:34 +0100 Date: Sun, 20 Aug 2000 10:41:34 +0100 From: Phil Harrison To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] code as speech Message-ID: <20000820104133.B21852@ramtop.demon.co.uk> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <20000819023146.F12126@lemuria.org> <00081916501500.03314@frankenstein.lumbercartel.com> <399F20F6.F9D59B9D@mediaone.net> <00081917420200.03387@frankenstein.lumbercartel.com> <399F2EFB.83AE3B4A@mediaone.net> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii Content-Disposition: inline User-Agent: Mutt/1.2.5i In-Reply-To: <399F2EFB.83AE3B4A@mediaone.net>; from sphere1952@mediaone.net on Sat, Aug 19, 2000 at 09:06:03PM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sat, Aug 19, 2000 at 09:06:03PM -0400, Sphere wrote: > > > Fine. You get $20 as soon as the eff has a place > for me to enter the number and my card # (I assume > I'll have to do that again), $50 if by then I understand > the benefit better and think it makes sense, maybe more > if by then I think you've got a chance in Hell. > https://www.eff.org/support/joineff.html -- Phil Harrison From dvd-discuss-owner@eon.law.harvard.edu Sun Aug 20 05:48:44 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id FAA27055 for dvd-discuss-outgoing; Sun, 20 Aug 2000 05:48:44 -0400 Received: from mail.lemuria.org (lemuria.borgfelde.ricardo.de [195.244.103.65]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id FAA27052 for ; Sun, 20 Aug 2000 05:48:42 -0400 Received: from lemuria.org by mail.lemuria.org via rsmtp with bsmtp id for ; Sun, 20 Aug 2000 11:09:37 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Received: by lemuria.org via sendmail with stdio id for dvd-discuss@eon.law.harvard.edu; Sun, 20 Aug 2000 11:04:12 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Date: Sun, 20 Aug 2000 11:04:12 +0200 From: Tom Vogt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] 2600's "list" of mirrors Message-ID: <20000820110412.C17277@lemuria.org> References: <00082011293403.01179@leopard.lan> <20000820014910.B16207@lemuria.org> <00081917533501.03387@frankenstein.lumbercartel.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0pre3i In-Reply-To: <00081917533501.03387@frankenstein.lumbercartel.com> X-Privacy: If you can, please encrypt your mails - finger for key Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu "D. C. Sessions" wrote: > Which reminds -- is there any way to drag the NYT in? The Plaintiffs are > obviously not stupid enough to try to get an order censoring the NYT, and > the NYT doesn't seem interested in asking for a declaratory judgment. Pity. one (old) idea on the decss list was to buy a half-page add in the print edition and post the source there. -- "The net treats censorship as a malfunction and re-routes around it." (John Gilmore) From dvd-discuss-owner@eon.law.harvard.edu Sun Aug 20 05:48:41 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id FAA27048 for dvd-discuss-outgoing; Sun, 20 Aug 2000 05:48:41 -0400 Received: from mail.lemuria.org (lemuria.borgfelde.ricardo.de [195.244.103.65]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id FAA27044 for ; Sun, 20 Aug 2000 05:48:40 -0400 Received: from lemuria.org by mail.lemuria.org via rsmtp with bsmtp id for ; Sun, 20 Aug 2000 11:09:37 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Received: by lemuria.org via sendmail with stdio id for dvd-discuss@eon.law.harvard.edu; Sun, 20 Aug 2000 10:58:59 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Date: Sun, 20 Aug 2000 10:58:59 +0200 From: Tom Vogt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] code as speech Message-ID: <20000820105859.B17277@lemuria.org> References: <20000819023146.F12126@lemuria.org> <200008191939.PAA01796@oobleck.mit.edu> <4.3.2.7.2.20000819165345.04a58350@127.0.0.1> <8nnfp9$gq1$1@blowfish.isaac.cs.berkeley.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0pre3i In-Reply-To: <8nnfp9$gq1$1@blowfish.isaac.cs.berkeley.edu> X-Privacy: If you can, please encrypt your mails - finger for key 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: > I was trying to make a more nuanced point. Kaplan claimed that banning > DeCSS source code requires only an intermediate level of scrutiny. I was > trying to ascertain whether he was basing this claim purely on the fact > that DeCSS source was published on the Internet (as opposed to being > published in print, say). I wanted to know whether his level of scrutiny > analysis rests on the medium where DeCSS was published, or whether he found > the medium irrelevant. that will likely be a point in the california case. DVD CCA has included copyleft (the guys who print the decss t-shirts) in the list of defendants (remember: they left a lot of "john doe" spots). -- "The net treats censorship as a malfunction and re-routes around it." (John Gilmore) From dvd-discuss-owner@eon.law.harvard.edu Sun Aug 20 05:50:40 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id FAA27167 for dvd-discuss-outgoing; Sun, 20 Aug 2000 05:50:40 -0400 Received: from ramtop.demon.co.uk (phil@ramtop.demon.co.uk [194.222.228.63]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id FAA27163 for ; Sun, 20 Aug 2000 05:50:37 -0400 Received: (from phil@localhost) by ramtop.demon.co.uk (8.9.3/8.9.3) id KAA22271 for dvd-discuss@eon.law.harvard.edu; Sun, 20 Aug 2000 10:53:03 +0100 Date: Sun, 20 Aug 2000 10:53:03 +0100 From: Phil Harrison To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] 2600's "list" of mirrors Message-ID: <20000820105303.C21852@ramtop.demon.co.uk> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <399F2BCA.FD76F8CB@mindspring.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii Content-Disposition: inline User-Agent: Mutt/1.2.5i In-Reply-To: <399F2BCA.FD76F8CB@mindspring.com>; from mickeym@mindspring.com on Sat, Aug 19, 2000 at 08:52:26PM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sat, Aug 19, 2000 at 08:52:26PM -0400, mickeym wrote: > > or, they could make links to pass arguments to popular search engines > which > will, in turn, respond with links. Links to meta-searchers are > especially abstract. > Sophistry? Not really, just a funny way to demonstrate the irony of the > situation. > It could look like this: > http://www.mindspring.com/~mickeym/irony.htm > For real irony, you should include the search engine results from: http://www.go.com/ since this search engine is owned by Disney :-). -- Phil Harrison From dvd-discuss-owner@eon.law.harvard.edu Sun Aug 20 05:56:48 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id FAA27228 for dvd-discuss-outgoing; Sun, 20 Aug 2000 05:56:48 -0400 Received: from mail.lemuria.org (lemuria.borgfelde.ricardo.de [195.244.103.65]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id FAA27225 for ; Sun, 20 Aug 2000 05:56:46 -0400 Received: from lemuria.org by mail.lemuria.org via rsmtp with bsmtp id for ; Sun, 20 Aug 2000 11:09:37 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Received: by lemuria.org via sendmail with stdio id for dvd-discuss@eon.law.harvard.edu; Sun, 20 Aug 2000 10:56:11 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Date: Sun, 20 Aug 2000 10:56:11 +0200 From: Tom Vogt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] code as speech Message-ID: <20000820105611.A17277@lemuria.org> References: <200008191923.PAA01779@oobleck.mit.edu> <00081913195200.27845@frankenstein.lumbercartel.com> <20000820014441.A16207@lemuria.org> <399F2217.EE5687A4@mediaone.net> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0pre3i In-Reply-To: <399F2217.EE5687A4@mediaone.net> X-Privacy: If you can, please encrypt your mails - finger for key Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Sphere wrote: > > if someone can get hold of the description, I'll be happy to put it on a > > special webpage that doesn't contain or even link to decss. > > >From a Google search for "DeCSS Gallery": > > http://www.cs.cmu.edu/~dst/DeCSS/Gallery/plain-english.html up on http://www.lemuria.org/DeCSS/plain-english.html though the original site is just as good, containing no links either. disadvantage: it's in the usa. advantage: it's at a .edu probably best to link to both. -- "The net treats censorship as a malfunction and re-routes around it." (John Gilmore) From dvd-discuss-owner@eon.law.harvard.edu Sun Aug 20 06:22:32 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id GAA27342 for dvd-discuss-outgoing; Sun, 20 Aug 2000 06:22:32 -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 GAA27339 for ; Sun, 20 Aug 2000 06:22:31 -0400 Received: from mediaone.net (h0060b03c5b8b.ne.mediaone.net [24.128.18.77]) by chmls06.mediaone.net (8.8.7/8.8.7) with ESMTP id GAA13664 for ; Sun, 20 Aug 2000 06:22:33 -0400 (EDT) Message-ID: <399FB169.BFC8C187@mediaone.net> Date: Sun, 20 Aug 2000 06:22:33 -0400 From: Sphere X-Mailer: Mozilla 4.73 [en] (WinNT; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] code as speech References: <8nnfp9$gq1$1@blowfish.isaac.cs.berkeley.edu> <20000819023146.F12126@lemuria.org> <4.3.2.7.2.20000819165345.04a58350@127.0.0.1> <8nnfp9$gq1$1@blowfish.isaac.cs.berkeley.edu> <4.3.2.7.2.20000819231110.00bf4820@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 08:07 PM 8/19/2000 -0700, D. C. Sessions wrote: > >On Sat, 19 Aug 2000, David A. Wagner wrote: > > > > > > > > > > > >Consider the following question. > > > > > Q: Would, under stated Kaplan's reasoning, DeCSS source code become > > > > > First Amendment protected speech when printed in a textbook? > > > >Quite a bit less hypothetically, how about a T-shirt? > > > >The Court will have an extremely hard time arguing that the t-shirts are > >primarily functional (well, they do protect somewhat against the elements > >and do preserve decency, but that's not the point.) The Court will have > >a very hard time arguing that the t-shirts make any measurable difference > >in the dissemination of DeCSS. They are as nearly pure political speech > >as it is possible to have outside of an address to Congress. > > OK, but you need to throw another factor into the mix here: DMCA does not > purport to regulate t-shirts. > > Yes, you're talking constitution, and the constitution always will trump a > statute, but, within limits, a judge is supposed to try to "read" a statute > in such a way as to make it constitutional. Consequently, if one removes > DMCA from the equation, one cannot necessarily assume that Kaplan's ruling > would be the same for a t-shirt. > > Also, remember that the distinction is not factually > unprecedented. Remember that one version of PGP (5.0?) was > "internationalized" by sending the source out of the U.S. on paper, then > having it scanned, etc., overseas. Of course, _Bernstein_ and _Junger_ > found fault with the ITAR regime on a number of grounds, but if memory > serves (and often it does not) neither decided the Net v. paper question, > and neither was a DMCA case in any event. > > BTW, t-shirt distribution is an issue in the California state court case, > now that copyleft.net has been served. They sell t-shirts with the code, > but (I think) they don't distribute the code itself on the Net (unless one > can actually read it at > http://www.copyleft.net/images/products/249/full_276_back.jpg, which I can't). To be precise, only part of the code is on the T-shirt. They do supply an entire listing in the shipment. > -------------------------------------------------------------------- > James S. Tyre mailto:jstyre@jstyre.com > 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 -- Sphere. Is DeCSS.c obscene? Why can't I read it? From dvd-discuss-owner@eon.law.harvard.edu Sun Aug 20 06:41:18 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id GAA27476 for dvd-discuss-outgoing; Sun, 20 Aug 2000 06:41:18 -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 GAA27473 for ; Sun, 20 Aug 2000 06:41:17 -0400 Received: from mediaone.net (h0060b03c5b8b.ne.mediaone.net [24.128.18.77]) by chmls06.mediaone.net (8.8.7/8.8.7) with ESMTP id GAA16066 for ; Sun, 20 Aug 2000 06:41:18 -0400 (EDT) Message-ID: <399FB5CF.68C49948@mediaone.net> Date: Sun, 20 Aug 2000 06:41:19 -0400 From: Sphere X-Mailer: Mozilla 4.73 [en] (WinNT; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] code as speech References: <20000819023146.F12126@lemuria.org> <00081916501500.03314@frankenstein.lumbercartel.com> <399F20F6.F9D59B9D@mediaone.net> <00081917420200.03387@frankenstein.lumbercartel.com> <399F2EFB.83AE3B4A@mediaone.net> <20000820104133.B21852@ramtop.demon.co.uk> Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Phil Harrison wrote: > > On Sat, Aug 19, 2000 at 09:06:03PM -0400, Sphere wrote: > > > > > > Fine. You get $20 as soon as the eff has a place > > for me to enter the number and my card # (I assume > > I'll have to do that again), $50 if by then I understand > > the benefit better and think it makes sense, maybe more > > if by then I think you've got a chance in Hell. > > > https://www.eff.org/support/joineff.html > > -- > Phil Harrison I think I just filled out that page a week or so ago... Let me know when the patent stuff is actually in the works and I'll fill it out again. -- Sphere. Is DeCSS.c obscene? Why can't I read it? From dvd-discuss-owner@eon.law.harvard.edu Sun Aug 20 07:16:44 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id HAA27826 for dvd-discuss-outgoing; Sun, 20 Aug 2000 07:16:44 -0400 Received: from mail.world-net.co.nz (mail.world-net.co.nz [203.96.119.27]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id HAA27823 for ; Sun, 20 Aug 2000 07:16:41 -0400 Received: from leopard.lan (nw3-40.world-net.co.nz [202.37.68.40]) by mail.world-net.co.nz (8.9.3/8.9.3) with SMTP id XAA32691 for ; Sun, 20 Aug 2000 23:12:49 +1200 From: Daniel Richards To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Manufacturing decss? Date: Sun, 20 Aug 2000 23:07:20 +1200 X-Mailer: KMail [version 1.0.29.2] Content-Type: text/plain MIME-Version: 1.0 Message-Id: <00082023133005.01179@leopard.lan> Content-Transfer-Encoding: 8bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu -----BEGIN PGP SIGNED MESSAGE----- Hash: SHA1 Hmm, I was just reading the judges order, and reead the following: "ORDER, ADJUDGED AND DECREED as follows: 1. The remaining defendants, their officers, agents, servents, employees and attoryneys and all persons in active concert or participation with them who recieve auctal notice of this order by personal service or otherwise be and they hereby are permanently enjoined and restraomed from (A) posting on any Internet web site or in any other way manufacturing, importing or offering to the public, proving or otherwise trafficking in DeCSS. Now, im wonderinw what active concert or participation auctally IS, in the legal sense? Also, "manufacturing". That sounds like anyone in the juridstiction of the court (NY or the entire US?) can't manufactur decss? what exactly does that mean? Does that mean anyone in the US working on LiViD will be held in contempt of the court?. Also, what is importing mean? Does this automatically make you not able to download decss from a foriegn (non-US) website? Despite that fact that all this is COMPLETELY USELESS, and doesn't mean jack shit to the rest of us, what does this mean to livid, if the MPAA switches targets? -----BEGIN PGP SIGNATURE----- Version: GnuPG v1.0.1 (GNU/Linux) Comment: For info see http://www.gnupg.org iD8DBQE5n71hHxSqGAiQwxwRAqLMAKDEYBAebbL8z6DeoXkwzcVXEY7m8QCeK9+C G7eiqyRzz10QVii9vhrNEho= =QXnB -----END PGP SIGNATURE----- From dvd-discuss-owner@eon.law.harvard.edu Sun Aug 20 09:14:13 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA28027 for dvd-discuss-outgoing; Sun, 20 Aug 2000 09:14:13 -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 JAA28024 for ; Sun, 20 Aug 2000 09:14:12 -0400 Received: from Jana-Server (user-38lcjn9.dialup.mindspring.com [209.86.78.233]) by smtp6.mindspring.com (8.9.3/8.8.5) with SMTP id JAA06575 for ; Sun, 20 Aug 2000 09:14:13 -0400 (EDT) Message-ID: <399FD9F9.EF790496@mindspring.com> Date: Sun, 20 Aug 2000 09:15:37 -0400 From: mickeym X-Mailer: Mozilla 4.7 [en] (Win95; I) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] 2600's "list" of mirrors Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > > Sophistry? Not really, just a funny way to demonstrate the irony of the > > situation. > > It could look like this: > > http://www.mindspring.com/~mickeym/irony.htm > > > For real irony, you should include the search engine results from: > http://www.go.com/ > > since this search engine is owned by Disney :-). > > -- > Phil Harrison > It's in there now, and the colors should now be normal, too. Light green on light purple was an unintended TPM, but I would have given authority to override the colors, honest. mickeym This is a test test From dvd-discuss-owner@eon.law.harvard.edu Sun Aug 20 09:49:24 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA28168 for dvd-discuss-outgoing; Sun, 20 Aug 2000 09:49:24 -0400 Received: from prserv.net (out5.prserv.net [32.97.166.35]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id JAA28165 for ; Sun, 20 Aug 2000 09:49:23 -0400 Received: from patris.bel-kwinith.org ([32.100.243.20]) by prserv.net (out5) with SMTP id <2000082013455420503392j4e>; Sun, 20 Aug 2000 13:45:55 +0000 MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Date: Sun, 20 Aug 2000 09:48:22 -0400 (EDT) From: rst@alum.mit.edu To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] introduction In-Reply-To: <20000820102533.A21852@ramtop.demon.co.uk> References: <20000818210635.A28207@lemuria.org> <00081906523901.27287@frankenstein.lumbercartel.com> <20000819155255.A19478@ramtop.demon.co.uk> <00081908131600.27457@frankenstein.lumbercartel.com> <20000820102533.A21852@ramtop.demon.co.uk> X-Mailer: VM 6.43 under 20.4 "Emerald" XEmacs Lucid Message-ID: <14751.57113.532946.269002@patris.bel-kwinith.org> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Phil Harrison writes: > Couldn't this be attacked from a freedom of expression angle? If a > content provider wished to allow his DVD's to be viewed by existing > players and also by free software players, can he be prevented from > doing so just because it upsets other copyright holders? No. This keeps coming up, and the answer is no. If you want a DVD which can be viewed by existing players and also by free software which is legal under *all* interpretations of the law, that's very easy to arrange --- just don't apply CSS to the .vob files on the DVD. So, if that's what you want, then neither CSS nor the DMCA is doing anything to impede your freedom of expression. Remember, this is one of the MPAA's own lines of argument --- "It's absolutely legal to make your own DVD player! It just can't perform the CSS proc... er ... um... circumvent our access control. (Yeah, that's the ticket!)" rst From dvd-discuss-owner@eon.law.harvard.edu Sun Aug 20 09:53:30 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA28284 for dvd-discuss-outgoing; Sun, 20 Aug 2000 09:53:30 -0400 Received: from prserv.net (out2.prserv.net [32.97.166.32]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id JAA28281 for ; Sun, 20 Aug 2000 09:53:30 -0400 Received: from patris.bel-kwinith.org ([32.100.243.20]) by prserv.net (out2) with SMTP id <200008201352362290305ikre>; Sun, 20 Aug 2000 13:52:38 +0000 MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Date: Sun, 20 Aug 2000 09:52:33 -0400 (EDT) From: rst@alum.mit.edu To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] code as speech In-Reply-To: <4.3.2.7.2.20000819231110.00bf4820@127.0.0.1> References: <8nnfp9$gq1$1@blowfish.isaac.cs.berkeley.edu> <20000819023146.F12126@lemuria.org> <4.3.2.7.2.20000819165345.04a58350@127.0.0.1> <00081920114200.03529@frankenstein.lumbercartel.com> <4.3.2.7.2.20000819231110.00bf4820@127.0.0.1> X-Mailer: VM 6.43 under 20.4 "Emerald" XEmacs Lucid Message-ID: <14751.56922.413841.334636@patris.bel-kwinith.org> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu James S. Tyre writes: > Also, remember that the distinction is not factually > unprecedented. Remember that one version of PGP (5.0?) was > "internationalized" by sending the source out of the U.S. on paper, then > having it scanned, etc., overseas. Of course, _Bernstein_ and _Junger_ > found fault with the ITAR regime on a number of grounds, but if memory > serves (and often it does not) neither decided the Net v. paper question, > and neither was a DMCA case in any event. I'm not sure that really works against us. The crypto regulations that led to the PGP 5.0 business were indeed based on the distinction between paper distribution and electronic forms, on the theory that source code in electronic form was a "device", and on paper it wasn't. But look at the upshot --- the paper could be and was OCR'ed back into electronic form, and used and redistributed that way. So, it seems that we have here a clear, practical example of the reason that distinctions of this sort are unsustainable in the real world. rst From dvd-discuss-owner@eon.law.harvard.edu Sun Aug 20 11:02:32 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA28791 for dvd-discuss-outgoing; Sun, 20 Aug 2000 11:02:32 -0400 Received: from smtp04.primenet.com (smtp04.primenet.com [206.165.6.134]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id LAA28788 for ; Sun, 20 Aug 2000 11:02:30 -0400 Received: (from daemon@localhost) by smtp04.primenet.com (8.9.3/8.9.3) id IAA23015 for ; Sun, 20 Aug 2000 08:00:43 -0700 (MST) Received: from sessions.phx.primenet.com(206.132.239.114), claiming to be "heorot.lumbercartel.com" via SMTP by smtp04.primenet.com, id smtpdAAAa6aWZS; Sun Aug 20 08:00:30 2000 Received: from frankenstein.lumbercartel.com (IDENT:dcs@frankenstein.lumbercartel.com [192.168.6.2]) by heorot.lumbercartel.com (8.9.3/8.8.7) with SMTP id IAA15817 for ; Sun, 20 Aug 2000 08:01:45 -0700 From: "D. C. Sessions" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] 2600's "list" of mirrors Date: Sun, 20 Aug 2000 08:00:05 -0700 X-Mailer: KMail [version 1.0.29] Content-Type: text/plain References: <00082011293403.01179@leopard.lan> <00081917533501.03387@frankenstein.lumbercartel.com> <20000820110412.C17277@lemuria.org> In-Reply-To: <20000820110412.C17277@lemuria.org> MIME-Version: 1.0 Message-Id: <00082008005700.07460@frankenstein.lumbercartel.com> Content-Transfer-Encoding: 8bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sun, 20 Aug 2000, Tom Vogt wrote: > "D. C. Sessions" wrote: > > Which reminds -- is there any way to drag the NYT in? The Plaintiffs are > > obviously not stupid enough to try to get an order censoring the NYT, and > > the NYT doesn't seem interested in asking for a declaratory judgment. Pity. > > one (old) idea on the decss list was to buy a half-page add in the print > edition and post the source there. No, I meant that the NYT already published links. They *should* be covered by the injunction. We just need the Court to say so. -- | Microsoft: "A reputation for releasing inferior software will make | | it more difficult for a software vendor to induce customers to pay | | for new products or new versions of existing products." | +----------- D. C. & M. V. Sessions ----------+ From dvd-discuss-owner@eon.law.harvard.edu Sun Aug 20 11:13:07 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA28900 for dvd-discuss-outgoing; Sun, 20 Aug 2000 11:13:07 -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 LAA28897 for ; Sun, 20 Aug 2000 11:13:06 -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 LAA08471 for ; Sun, 20 Aug 2000 11:13:01 -0400 (EDT) Message-Id: <4.1.20000820103504.01d49e50@law.harvard.edu> X-Sender: wseltzer@pop.bellatlantic.net X-Mailer: QUALCOMM Windows Eudora Pro Version 4.1 Date: Sun, 20 Aug 2000 11:14:15 -0400 To: dvd-discuss@eon.law.harvard.edu From: Wendy Seltzer Subject: Re: [dvd-discuss] california jurisdiction question In-Reply-To: <200008191859.OAA01769@oobleck.mit.edu> References: <20000819164507.5528.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 At 02:59 PM 08/19/2000 -0400, Seth Finkelstein wrote: >> Bryan Taylor >> I recommend that you take his advice, add the "magic phrase" at the >> bottom, and look at the Pavlovich motion to quash and emulate it. This >> is surely better than doing nothing, and you can probably will help >> yourself tremendously. > > I would put forth the idea that doing something *wrongly* >would be worse than doing nothing at all. I would suggest either >a) Stay out of the "tar baby" entirely OR >b) Do it very, very, carefully, with full legal assistance. I have to agree with Seth and the others who have urged caution here. I'm not a California lawyer (and know nothing about German law), but what I know about special appearances to contest jurisdiction is sufficiently tangled that "doing something" unsuccessfully could be worse than doing nothing. Matt's motion to quash looks like a good starting point for a lawyer to work from if you take that route. --Wendy > But there is no margin for error here. If you mess up, >that's way bad. The Court may gleeful pounce upon that >error as putting you under the court's jurisdiction even as you >were attempting to contest the court's jurisdiction. > >-- >Seth Finkelstein Consulting Programmer sethf@mit.edu http://sethf.com --- Wendy Seltzer wendy@seltzer.com Fellow, Berkman Center for Internet & Society at Harvard Law School http://cyber.law.harvard.edu/seltzer.html From dvd-discuss-owner@eon.law.harvard.edu Sun Aug 20 11:17:10 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA28963 for dvd-discuss-outgoing; Sun, 20 Aug 2000 11:17:10 -0400 Received: from smtp03.primenet.com (smtp03.primenet.com [206.165.6.133]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id LAA28959 for ; Sun, 20 Aug 2000 11:17:08 -0400 Received: (from daemon@localhost) by smtp03.primenet.com (8.9.3/8.9.3) id IAA19389 for ; Sun, 20 Aug 2000 08:16:09 -0700 (MST) Received: from sessions.phx.primenet.com(206.132.239.114), claiming to be "heorot.lumbercartel.com" via SMTP by smtp03.primenet.com, id smtpdAAAmXay2L; Sun Aug 20 08:16:00 2000 Received: from frankenstein.lumbercartel.com (IDENT:dcs@frankenstein.lumbercartel.com [192.168.6.2]) by heorot.lumbercartel.com (8.9.3/8.8.7) with SMTP id IAA15962 for ; Sun, 20 Aug 2000 08:16:37 -0700 From: "D. C. Sessions" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] introduction Date: Sun, 20 Aug 2000 08:04:19 -0700 X-Mailer: KMail [version 1.0.29] Content-Type: text/plain References: <20000818210635.A28207@lemuria.org> <00081908131600.27457@frankenstein.lumbercartel.com> <20000820102533.A21852@ramtop.demon.co.uk> In-Reply-To: <20000820102533.A21852@ramtop.demon.co.uk> MIME-Version: 1.0 Message-Id: <00082008155501.07460@frankenstein.lumbercartel.com> Content-Transfer-Encoding: 8bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sun, 20 Aug 2000, Phil Harrison wrote: > On Sat, Aug 19, 2000 at 08:09:49AM -0700, D. C. Sessions wrote: > > [DA] No, LiViD is illegal if it's primarily *intended* to circumvent, or if its main > > economic application is circumvention. Since the vast economic majority > > of trade in DVDs is from the big studios, if they don't want their disks > > played on LiViD then it's a circumvention tool. Which anyone working on > > LiViD knows or has every reason to know, so that must be their intention. > > > Couldn't this be attacked from a freedom of expression angle? If a content > provider wished to allow his DVD's to be viewed by existing players and also by > free software players, can he be prevented from doing so just because it upsets > other copyright holders? Catch-22: you can't use hypothetical indie producers to justify a player. Of course, as long as there aren't many indie producers demanding players not locked up by DVDCCA, they'll remain hypothetical. And the occasional one who might start the ball before free players hit critical mass have other options in terms of expression. Their market preferences aren't First Amendment concerns. -- | Microsoft: "A reputation for releasing inferior software will make | | it more difficult for a software vendor to induce customers to pay | | for new products or new versions of existing products." | +----------- D. C. & M. V. Sessions ----------+ From dvd-discuss-owner@eon.law.harvard.edu Sun Aug 20 11:56:02 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA30152 for dvd-discuss-outgoing; Sun, 20 Aug 2000 11:56:02 -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 LAA30149 for ; Sun, 20 Aug 2000 11:56:01 -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 LAA30221; Sun, 20 Aug 2000 11:55:35 -0400 Message-Id: <200008201555.LAA30221@samsara.law.cwru.edu> To: dvd-discuss@eon.law.harvard.edu cc: junger@samsara.law.cwru.edu Subject: Re: [dvd-discuss] code as speech In-reply-to: Your message of "Sat, 19 Aug 2000 13:16:25 PDT." <00081913195200.27845@frankenstein.lumbercartel.com> Date: Sun, 20 Aug 2000 11:55:04 -0400 From: "Peter D. Junger" Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu "D. C. Sessions" writes: : > As indicated above, the DMCA reaches links deliberately created by a : > web site operator for the purpose of disseminating technology that : > enables the user to circumvent access controls on copyrighted works. : > The question is whether it may do so consistent with the First : > Amendment. : > : > Observe key words: "for the purpose of disseminating technology" : > I think he'll be real unimpressed by any fancy encoding if it's clear : > that the end purpose is to get DeCSS as output. : : Thanks for pointing this out. It's actually a great point. : : According to this wording, it's the _technology_, not the _mechanism_, : of DeCSS that's being prohibited. : : We need, really soon, to get that English prose description of the decryption : algorithm posted to a website, preferably outside of the USA. And then : 2600 should get a declaratory clarification from the Court as to whether that : 's : covered by the judgment forbidding linking. The judgment does not forbid linking; only the order, which applies only to the defendants, forbids linking. So only the defendants could seek a ``declaratory clarification.'' And since Kaplan has determined that their *intent* is to aid others in circumventing the DMCA one doesn't need a declaration to know what Kaplan would declare. -- 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 Sun Aug 20 12:18:18 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA30584 for dvd-discuss-outgoing; Sun, 20 Aug 2000 12:18:18 -0400 Received: from ramtop.demon.co.uk (phil@ramtop.demon.co.uk [194.222.228.63]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id MAA30581 for ; Sun, 20 Aug 2000 12:18:15 -0400 Received: (from phil@localhost) by ramtop.demon.co.uk (8.9.3/8.9.3) id RAA23444 for dvd-discuss@eon.law.harvard.edu; Sun, 20 Aug 2000 17:20:48 +0100 Date: Sun, 20 Aug 2000 17:20:48 +0100 From: Phil Harrison To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] introduction Message-ID: <20000820172047.A23428@ramtop.demon.co.uk> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <20000818210635.A28207@lemuria.org> <00081906523901.27287@frankenstein.lumbercartel.com> <20000819155255.A19478@ramtop.demon.co.uk> <00081908131600.27457@frankenstein.lumbercartel.com> <20000820102533.A21852@ramtop.demon.co.uk> <14751.57113.532946.269002@patris.bel-kwinith.org> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii Content-Disposition: inline User-Agent: Mutt/1.2.5i In-Reply-To: <14751.57113.532946.269002@patris.bel-kwinith.org>; from rst@alum.mit.edu on Sun, Aug 20, 2000 at 09:48:22AM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sun, Aug 20, 2000 at 09:48:22AM -0400, rst@alum.mit.edu wrote: > Phil Harrison writes: > > Couldn't this be attacked from a freedom of expression angle? If a > > content provider wished to allow his DVD's to be viewed by existing > > players and also by free software players, can he be prevented from > > doing so just because it upsets other copyright holders? > > No. This keeps coming up, and the answer is no. If you want a DVD > which can be viewed by existing players and also by free software > which is legal under *all* interpretations of the law, that's very > easy to arrange --- just don't apply CSS to the .vob files on the DVD. > So, if that's what you want, then neither CSS nor the DMCA is doing > anything to impede your freedom of expression. > But what if I want to exclude non-GPL players that are not CSS licensed? I can't do that without CSS encrypting the content, can I? -- Phil Harrison From dvd-discuss-owner@eon.law.harvard.edu Sun Aug 20 12:19:25 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA30642 for dvd-discuss-outgoing; Sun, 20 Aug 2000 12:19:25 -0400 Received: from diplo.antw.online.be (diplo.antw.online.be [62.112.0.10]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id MAA30634 for ; Sun, 20 Aug 2000 12:19:23 -0400 Received: from 62.112.12.29 (dialpool3-29.dial.tijd.com [62.112.12.29]) by diplo.antw.online.be (8.9.3/8.9.0) with SMTP id SAA29345 for ; Sun, 20 Aug 2000 18:18:54 +0200 (MET DST) Message-ID: <39A0049F.510C@tijd.com> Date: Sun, 20 Aug 2000 18:17:39 +0200 From: jpa X-Mailer: Mozilla 3.01-C-MACOS8 (Macintosh; I; PPC) MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] knowingly marketed for use of circumvention Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Hello, I just wanted to verify that I read 1201 a(2) correctly. As i see it, three conditions must be fulfilled in order to apply: the technology must a) - be 'purposely designed' for circumvention, so for instance, if a pair of pliers will circumvent it does not follow that creating and making available pliers becomes illegal. b) - have no other 'relevant' use (I'm paraphrasing here; but the original 'other uses are of limited commercially significant purpose' isn't that clear to me either) c) - knowingly marketed for use of circumvention. Now this may seem stupid, but the way c) can be read is that if you put decss on a website with the heading 'here's the decss code to rip your dvd's, death to all lawyers' this is illegal, while if you add the heading 'run decss daily to avoid all occurrences of migraine and constipation' this is legal. From dvd-discuss-owner@eon.law.harvard.edu Sun Aug 20 12:45:38 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA31028 for dvd-discuss-outgoing; Sun, 20 Aug 2000 12:45:38 -0400 Received: from web6404.mail.yahoo.com (web6404.mail.yahoo.com [128.11.22.152]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id MAA31025 for ; Sun, 20 Aug 2000 12:45:37 -0400 Message-ID: <20000820164540.15763.qmail@web6404.mail.yahoo.com> Received: from [24.128.190.214] by web6404.mail.yahoo.com; Sun, 20 Aug 2000 09:45:40 PDT Date: Sun, 20 Aug 2000 09:45:40 -0700 (PDT) From: Pete Broule Subject: Re: [dvd-discuss] knowingly marketed for use of circumvention To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --- jpa wrote: > Hello, I just wanted to verify that I read 1201 a(2) correctly. As i > see > it, three conditions must be fulfilled in order to apply: There's an "or" there. Either one of these will suffice. > > the technology must > > a) - be 'purposely designed' for circumvention, so for instance, if a > pair of pliers will circumvent it does not follow that creating and > making available pliers becomes illegal. > > b) - have no other 'relevant' use (I'm paraphrasing here; but the > original 'other uses are of limited commercially significant purpose' > isn't that clear to me either) > > c) - knowingly marketed for use of circumvention. > > Now this may seem stupid, but the way c) can be read is that if you > put > decss on a website with the heading 'here's the decss code to rip > your > dvd's, death to all lawyers' this is illegal, while if you add the > heading 'run decss daily to avoid all occurrences of migraine and > constipation' this is legal. __________________________________________________ Do You Yahoo!? Yahoo! Mail – Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Sun Aug 20 12:50:55 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA31174 for dvd-discuss-outgoing; Sun, 20 Aug 2000 12:50:55 -0400 Received: from smtp05.primenet.com (smtp05.primenet.com [206.165.6.135]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id MAA31163 for ; Sun, 20 Aug 2000 12:50:49 -0400 Received: (from daemon@localhost) by smtp05.primenet.com (8.9.3/8.9.3) id JAA24071 for ; Sun, 20 Aug 2000 09:50:54 -0700 (MST) Received: from sessions.phx.primenet.com(206.132.239.114), claiming to be "heorot.lumbercartel.com" via SMTP by smtp05.primenet.com, id smtpdAAAKeaa8U; Sun Aug 20 09:50:46 2000 Received: from frankenstein.lumbercartel.com (IDENT:dcs@frankenstein.lumbercartel.com [192.168.6.2]) by heorot.lumbercartel.com (8.9.3/8.8.7) with SMTP id JAA16491 for ; Sun, 20 Aug 2000 09:50:37 -0700 From: "D. C. Sessions" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] code as speech Date: Sun, 20 Aug 2000 09:36:18 -0700 X-Mailer: KMail [version 1.0.29] Content-Type: text/plain References: <8nnfp9$gq1$1@blowfish.isaac.cs.berkeley.edu> <4.3.2.7.2.20000819231110.00bf4820@127.0.0.1> In-Reply-To: <4.3.2.7.2.20000819231110.00bf4820@127.0.0.1> MIME-Version: 1.0 Message-Id: <00082009494301.07583@frankenstein.lumbercartel.com> Content-Transfer-Encoding: 8bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sat, 19 Aug 2000, James S. Tyre wrote: > At 08:07 PM 8/19/2000 -0700, D. C. Sessions wrote: > >On Sat, 19 Aug 2000, David A. Wagner wrote: > > > > >Consider the following question. > > > > > Q: Would, under stated Kaplan's reasoning, DeCSS source code become > > > > > First Amendment protected speech when printed in a textbook? > > > >Quite a bit less hypothetically, how about a T-shirt? > > > >The Court will have an extremely hard time arguing that the t-shirts are > >primarily functional (well, they do protect somewhat against the elements > >and do preserve decency, but that's not the point.) The Court will have > >a very hard time arguing that the t-shirts make any measurable difference > >in the dissemination of DeCSS. They are as nearly pure political speech > >as it is possible to have outside of an address to Congress. > > OK, but you need to throw another factor into the mix here: DMCA does not > purport to regulate t-shirts. And this is a problem because .... ? Plain question: for the exact same sequence of characters, 1) Are they legal on a webpage? 2) Are they legal on a t-shirt? If the answer to (2) is no, we have a pretty straightforward A1 case on familiar grounds with plenty of precedent. If the answer to (2) is yes and (1) is yes, what happens to Universal v Corley? If the answer to (2) is no, then how is that reconciled with Reno v. ACLU? > Yes, you're talking constitution, and the constitution always will trump a > statute, but, within limits, a judge is supposed to try to "read" a statute > in such a way as to make it constitutional. Consequently, if one removes > DMCA from the equation, one cannot necessarily assume that Kaplan's ruling > would be the same for a t-shirt. That's OK -- Kaplan is welcome to apply the DMCA to a t-shirt. Hmmm... his injunction forbids Corley (not 2600, as I read it) from publishing or linking to prohibited websites. What would happen if Corley made his next appearance in a Copyleft t-shirt? With, perhaps, another on hand to replace it which was silkscreened with a URL for the same material? > Also, remember that the distinction is not factually > unprecedented. Remember that one version of PGP (5.0?) was > "internationalized" by sending the source out of the U.S. on paper, then > having it scanned, etc., overseas. Of course, _Bernstein_ and _Junger_ > found fault with the ITAR regime on a number of grounds, but if memory > serves (and often it does not) neither decided the Net v. paper question, > and neither was a DMCA case in any event. Since those cases were covered by the national security exeption they might not be directly relevent, but we need to remember that in the course the Ninth Circuit came down pretty hard against distinguishing between paper and electronic publication. Never went outside of the Ninth, but the result was very similar to Reno v ACLU. The California case is headed straight towards this, since it IS in the Ninth Circuit and they've actually included Copyleft in the mix. Should be fun. > BTW, t-shirt distribution is an issue in the California state court case, > now that copyleft.net has been served. They sell t-shirts with the code, > but (I think) they don't distribute the code itself on the Net (unless one > can actually read it at > http://www.copyleft.net/images/products/249/full_276_back.jpg, which I can't). Copyleft doesn't publish the code online, but they do package a listing with the shirts (looking at mine). Again, since that case is in the Ninth Circuit they don't really have much to lose in adding Copyleft. -- | Microsoft: "A reputation for releasing inferior software will make | | it more difficult for a software vendor to induce customers to pay | | for new products or new versions of existing products." | +----------- D. C. & M. V. Sessions ----------+ From dvd-discuss-owner@eon.law.harvard.edu Sun Aug 20 12:50:52 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA31170 for dvd-discuss-outgoing; Sun, 20 Aug 2000 12:50:52 -0400 Received: from smtp04.primenet.com (smtp04.primenet.com [206.165.6.134]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id MAA31167 for ; Sun, 20 Aug 2000 12:50:51 -0400 Received: (from daemon@localhost) by smtp04.primenet.com (8.9.3/8.9.3) id JAA12349 for ; Sun, 20 Aug 2000 09:49:03 -0700 (MST) Received: from sessions.phx.primenet.com(206.132.239.114), claiming to be "heorot.lumbercartel.com" via SMTP by smtp04.primenet.com, id smtpdAAAO0aGby; Sun Aug 20 09:48:50 2000 Received: from frankenstein.lumbercartel.com (IDENT:dcs@frankenstein.lumbercartel.com [192.168.6.2]) by heorot.lumbercartel.com (8.9.3/8.8.7) with SMTP id JAA16443 for ; Sun, 20 Aug 2000 09:50:21 -0700 From: "D. C. Sessions" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] code as speech Date: Sun, 20 Aug 2000 09:29:13 -0700 X-Mailer: KMail [version 1.0.29] Content-Type: text/plain References: <200008201555.LAA30221@samsara.law.cwru.edu> In-Reply-To: <200008201555.LAA30221@samsara.law.cwru.edu> MIME-Version: 1.0 Message-Id: <00082009354300.07583@frankenstein.lumbercartel.com> Content-Transfer-Encoding: 8bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sun, 20 Aug 2000, Peter D. Junger wrote: > "D. C. Sessions" writes: > > : > As indicated above, the DMCA reaches links deliberately created by a > : > web site operator for the purpose of disseminating technology that > : > enables the user to circumvent access controls on copyrighted works. > : > The question is whether it may do so consistent with the First > : > Amendment. > : > > : > Observe key words: "for the purpose of disseminating technology" > : > I think he'll be real unimpressed by any fancy encoding if it's clear > : > that the end purpose is to get DeCSS as output. > : > : Thanks for pointing this out. It's actually a great point. > : > : According to this wording, it's the _technology_, not the _mechanism_, > : of DeCSS that's being prohibited. > : > : We need, really soon, to get that English prose description of the decryption > : algorithm posted to a website, preferably outside of the USA. And then > : 2600 should get a declaratory clarification from the Court as to whether that > : 's > : covered by the judgment forbidding linking. > > The judgment does not forbid linking; only the order, which applies only > to the defendants, forbids linking. So only the defendants could > seek a ``declaratory clarification.'' And since Kaplan has determined > that their *intent* is to aid others in circumventing the DMCA one doesn't > need a declaration to know what Kaplan would declare. All the better. Inch by inch, step by step, drag Kaplan down the slippery slope he's set to traverse. While the rest of the world openly publishes and discusses LiViD, 2600 is prohibited from so much as mentioning other court cases involving it because following those links far enough would lead to knowledge that Kaplan has prohibited. So by all means, 2600 should have a link to the English explanatory text. And ask the Court for guidance on whether such a link is permitted. At which point the reference gets modified to remove the anchor tags. Followed by removing the http protocol reference. Followed by .... Also a link to another publication's -- such as the NYT's -- coverage of the case which includes the dreaded link. As well as mention of search engines which allow the reader to find DeCSS. And so on. -- | Microsoft: "A reputation for releasing inferior software will make | | it more difficult for a software vendor to induce customers to pay | | for new products or new versions of existing products." | +----------- D. C. & M. V. Sessions ----------+ From dvd-discuss-owner@eon.law.harvard.edu Sun Aug 20 13:16:54 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA31381 for dvd-discuss-outgoing; Sun, 20 Aug 2000 13:16:54 -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 NAA31378 for ; Sun, 20 Aug 2000 13:16:53 -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 NAA30478; Sun, 20 Aug 2000 13:16:26 -0400 Message-Id: <200008201716.NAA30478@samsara.law.cwru.edu> To: dvd-discuss@eon.law.harvard.edu cc: junger@samsara.law.cwru.edu Subject: Re: [dvd-discuss] code as speech In-reply-to: Your message of "Sat, 19 Aug 2000 23:40:15 PDT." <4.3.2.7.2.20000819231110.00bf4820@127.0.0.1> Date: Sun, 20 Aug 2000 13:15:56 -0400 From: "Peter D. Junger" Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu "James S. Tyre" writes: : At 08:07 PM 8/19/2000 -0700, D. C. Sessions wrote: : >On Sat, 19 Aug 2000, David A. Wagner wrote: : > : > > > > : > > > >Consider the following question. : > > > > Q: Would, under stated Kaplan's reasoning, DeCSS source code become : > > > > First Amendment protected speech when printed in a textbook? : > : >Quite a bit less hypothetically, how about a T-shirt? : > : >The Court will have an extremely hard time arguing that the t-shirts are : >primarily functional (well, they do protect somewhat against the elements : >and do preserve decency, but that's not the point.) The Court will have : >a very hard time arguing that the t-shirts make any measurable difference : >in the dissemination of DeCSS. They are as nearly pure political speech : >as it is possible to have outside of an address to Congress. : : : OK, but you need to throw another factor into the mix here: DMCA does not : purport to regulate t-shirts. It purports to limit the distribution of technology. It doesn't distinguish between t-shirts and floppy disks and making it available on a server on the Internet. Or at least that is the way I read it at a superficial level, though I actually think that a careful reading of 17 U.S.C. 1201(a)(2) suggests that the limitation applies to devices, like computers, rather than texts like computer code. (The careful reading avoids a lot of constitutional issues.) : Yes, you're talking constitution, and the constitution always will trump a : statute, but, within limits, a judge is supposed to try to "read" a statute : in such a way as to make it constitutional. Consequently, if one removes : DMCA from the equation, one cannot necessarily assume that Kaplan's ruling : would be the same for a t-shirt. How can you leave the DMCA out and have any issue for a court to decide? : Also, remember that the distinction is not factually : unprecedented. Remember that one version of PGP (5.0?) was : "internationalized" by sending the source out of the U.S. on paper, then : having it scanned, etc., overseas. Of course, _Bernstein_ and _Junger_ : found fault with the ITAR regime on a number of grounds, but if memory : serves (and often it does not) neither decided the Net v. paper question, : and neither was a DMCA case in any event. The government amended the regulations before _Reno_ in hopes that the distinction between hard copy and electronic copies would save the regulations. Your are right in remembering that neither _Bernstein_ nor _Junger_ discussed that issue. (But is it possible to correctly remember something that did not happen: what was it that the President didn't know and when was it that he first didn't know it?) Nor did the _Junger_ or _Bernstein_ courts address the level of First Amendment scrutiny in any detail, although the government spent a great deal of time trying to show that _O'Brien_---and later cases purporting to rely on _O'Brien_---would justify the export regulations forbidding the publication of encryption code, on the ground that all code, source and object, is functional. But what the Sixth Circuit held in _Junger_ that Kaplan ignored was that that functionality is part of what the proponents of the regulation have to show in establishing that, even though the publication of computer code is protected by the first amendment, the governmental or public interest in suppressing the publication of the code is so great that it overcomes the heavy burden of the first amendment. I fail to see how the interest of the MPAA in extending the protection of copyright beyond that authorized by the Constitution can possibly satisfy that burden. -- 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 Sun Aug 20 13:37:09 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA31524 for dvd-discuss-outgoing; Sun, 20 Aug 2000 13:37:09 -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 NAA31521 for ; Sun, 20 Aug 2000 13:37:08 -0400 Received: from 209-122-203-242.s496.tnt6.lnhva.md.dialup.rcn.com ([209.122.203.242]) by smtp01.mrf.mail.rcn.net with esmtp (Exim 3.15 #2) id 13QZ1x-0002at-00 for dvd-discuss@eon.law.harvard.edu; Sun, 20 Aug 2000 13:37:09 -0400 Date: Sun, 20 Aug 2000 13:36:53 EDT From: Jeremy Erwin To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] code as speech 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, 20 Aug 2000, D. C. Sessions wrote: > Date: Sun, 20 Aug 2000 09:29:13 -0700 > To: dvd-discuss@eon.law.harvard.edu > From: "D. C. Sessions" > Reply-To: dvd-discuss@eon.law.harvard.edu > Subject: Re: [dvd-discuss] code as speech > > On Sun, 20 Aug 2000, Peter D. Junger wrote: > > "D. C. Sessions" writes: > > > > : > As indicated above, the DMCA reaches links deliberately created > by a > > : > web site operator for the purpose of disseminating technology > that > > : > enables the user to circumvent access controls on copyrighted > works. > > : > The question is whether it may do so consistent with the First > > : > Amendment. > > : > > > : > Observe key words: "for the purpose of disseminating technology" > > : > I think he'll be real unimpressed by any fancy encoding if it's > clear > > : > that the end purpose is to get DeCSS as output. > > : > > : Thanks for pointing this out. It's actually a great point. > > : > > : According to this wording, it's the _technology_, not the > _mechanism_, > > : of DeCSS that's being prohibited. > > : > > : We need, really soon, to get that English prose description of the > decryption > > : algorithm posted to a website, preferably outside of the USA. And > then > > : 2600 should get a declaratory clarification from the Court as to > whether that > > : 's > > : covered by the judgment forbidding linking. > > > > The judgment does not forbid linking; only the order, which applies > only > > to the defendants, forbids linking. So only the defendants could > > seek a ``declaratory clarification.'' And since Kaplan has determined > > that their *intent* is to aid others in circumventing the DMCA one > doesn't > > need a declaration to know what Kaplan would declare. > > All the better. Inch by inch, step by step, drag Kaplan down the > slippery > slope he's set to traverse. While the rest of the world openly publishes > and discusses LiViD, 2600 is prohibited from so much as mentioning other > court cases involving it because following those links far enough would > lead to knowledge that Kaplan has prohibited. > > So by all means, 2600 should have a link to the English explanatory text. > And ask the Court for guidance on whether such a link is permitted. > At which point the reference gets modified to remove the anchor tags. > Followed by removing the http protocol reference. Followed by .... > > Also a link to another publication's -- such as the NYT's -- coverage > of the case which includes the dreaded link. As well as mention of > search > engines which allow the reader to find DeCSS. And so on. For the purposes of distributing technology covers a great deal, unfortunately. Many of the means of distributing CSS decoders are somewhat transparent, and somewhat silly. The "english prose" rendition is particularly so. Perhaps what is needed is a publication, describing in great detail, the flaws and design mishaps perpetrated by the creators of CSS. Call it "CSS: how not to desgn a access control device", and include code snippets which can be reassenbled by a novice programmer, so as to illustrate key discussions." On another note, I downloaded DeCSSPlus last night, and I am amazed at the usage restrictions: " !! THIS PROGRAM IS FOR EDUCATIONAL PURPOSE ONLY !! !! YOU ARE NOT ALLOWED TO MISUSE THIS PROGRAM TO COPY DVDS !! DeCSSplus v1.0 - Decrypt without knowing the key - (c) 2000 Ethan Hawke ------------------------------------------------------------------------- ". Wasn't it derived from GPLed souurce code, and therefore not subject to such usage restrictions? Indeed, DeCSS.c, though not prefaced by a GPL preamble, contains source code from Stevenson, viz: /******************************************************** * * The Divide and conquer attack * * Deviced and written by Frank A. Stevenson 26 Oct 1999 * * ( frank@funcom.com ) * Released under the GPL license * ********************************************************/ #define KEYSTREAMBYTES 10 static unsigned char invtab4[256]; int CSScracker(int StartVal,unsigned char* pStream,DVD40bitKey *pkey) { unsigned int t1,t2,t3,t4,t5,t6; .. } Jeremy Erwin From dvd-discuss-owner@eon.law.harvard.edu Sun Aug 20 15:16:47 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA00400 for dvd-discuss-outgoing; Sun, 20 Aug 2000 15:16:47 -0400 Received: from mail.lemuria.org (lemuria.borgfelde.ricardo.de [195.244.103.65]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id PAA00397 for ; Sun, 20 Aug 2000 15:16:46 -0400 Received: from lemuria.org by mail.lemuria.org via rsmtp with bsmtp id for ; Sun, 20 Aug 2000 21:05:35 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Received: by lemuria.org via sendmail with stdio id for dvd-discuss@eon.law.harvard.edu; Sun, 20 Aug 2000 20:51:06 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Date: Sun, 20 Aug 2000 20:51:06 +0200 From: Tom Vogt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] california jurisdiction question Message-ID: <20000820205106.A18620@lemuria.org> References: <20000819164507.5528.qmail@web513.mail.yahoo.com> <200008191859.OAA01769@oobleck.mit.edu> <4.1.20000820103504.01d49e50@law.harvard.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0pre3i In-Reply-To: <4.1.20000820103504.01d49e50@law.harvard.edu> X-Privacy: If you can, please encrypt your mails - finger for key Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Wendy Seltzer wrote: > I have to agree with Seth and the others who have urged caution here. I'm > not a California lawyer (and know nothing about German law), but what I > know about special appearances to contest jurisdiction is sufficiently > tangled that "doing something" unsuccessfully could be worse than doing > nothing. thanks to you and others who gave same advise. I've come to the conclusion that one cannot deal sensibly with the us legal system, so one better not deal with it at all. -- "The net treats censorship as a malfunction and re-routes around it." (John Gilmore) From dvd-discuss-owner@eon.law.harvard.edu Sun Aug 20 15:27:09 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA00523 for dvd-discuss-outgoing; Sun, 20 Aug 2000 15:27:09 -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 PAA00520 for ; Sun, 20 Aug 2000 15:27:08 -0400 Received: from mit.edu (h0050da62b39d.ne.mediaone.net [24.147.217.121]) by chmls05.mediaone.net (8.8.7/8.8.7) with ESMTP id PAA04807; Sun, 20 Aug 2000 15:27:11 -0400 (EDT) Message-ID: <39A03184.7175BC6C@mit.edu> Date: Sun, 20 Aug 2000 15:29:08 -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] 2600's "list" of mirrors References: <00082011293403.01179@leopard.lan> <20000820014910.B16207@lemuria.org> <00081917533501.03387@frankenstein.lumbercartel.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 "D. C. Sessions" wrote: > > On Sat, 19 Aug 2000, Tom Vogt wrote: > > Daniel Richards wrote: > > > Im just curious, now that 2600 isn't allowed to link, what will happen now that > > > they are listing the websites that carry the mirror? > > > http://www.2600.com/news/1999/1227-help.html > > > > most likely, MPAA will drag them into court again and get that banned, too. > > since the intent is clearly to follow the letter of the judgement while > > mocking the spirit, that shouldn't be difficult. > > > > I'm fairly sure 2600 will reply by changing the list to something that > > SPELLS OUT the URLs - double-u,double-u,double-u,dot,... > > > > we've begun moving down a road towards making even talking about decss > > illegal. the term "thought crime" comes to mind. > > It's more than mocking the spirit. Backing slowly down the progression > of 2600 to "http://www.2600.com" to > "www.2600.com" to "2600.com's website" to "the website maintained by > online magazine 2600" forces Kaplan to deal with the fundamental > idiocy of trying to draw a hard line between expressive text and function. > > The hyperlink is semantically IDENTICAL to the last expression; it's just > more concise and convenient. About like the reason that legalese is not > colloquial English. So does that mean that Supreme Court decisions are > protected less strictly than other speech? (Dang but I'd love to see that > one argued....) At the end of that particular slippery slope is the point > we've been warning about and Kaplan dismissed: forbidding Corley from > ever even MENTIONING the existence of DeCSS. Which is, purely, prior > restraint of the Press in the particular matter of covering news. And they're > back to going after the New York Times. Or not, which is at least as damning. > > Which reminds -- is there any way to drag the NYT in? The Plaintiffs are > obviously not stupid enough to try to get an order censoring the NYT, and > the NYT doesn't seem interested in asking for a declaratory judgment. Pity. I think we could drag the NYT in. They have clearly reported on, and IIRC, posted links to DeCSS. Corley should ask the court whether he can point at the NYT web stories on DeCSS, the NYT website, whether he could distribute old editions of the NYT about DeCSS since he cannot report on DeCSS directly, and on and on and on. At some point Kaplan and the MPAA have to trip over the First Amendment and then we can start going back up the chain (since they are all differences in degree, not kind). - Ravi Nanavati From dvd-discuss-owner@eon.law.harvard.edu Sun Aug 20 15:40:48 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA00768 for dvd-discuss-outgoing; Sun, 20 Aug 2000 15:40:48 -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 PAA00765 for ; Sun, 20 Aug 2000 15:40:46 -0400 Received: from sites.inka.de (puric.inka.de [212.227.14.17]) by mail.inka.de with esmtp id 13Qaxb-0006im-00; Sun, 20 Aug 2000 21:40:47 +0200 Received: from localhost by sites.inka.de with local id 13Qaxe-0007to-00; Sun, 20 Aug 2000 21:40:50 +0200 Date: Sun, 20 Aug 2000 21:40:50 +0200 From: Sham Gardner To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] 2600's "list" of mirrors Message-ID: <20000820214050.A27856@inka.de> References: <00082011293403.01179@leopard.lan> <20000820014910.B16207@lemuria.org> <00081917533501.03387@frankenstein.lumbercartel.com> <39A03184.7175BC6C@mit.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0i In-Reply-To: <39A03184.7175BC6C@mit.edu>; from ravi_n@mit.edu on Sun, Aug 20, 2000 at 03:29:08PM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sun, Aug 20, 2000 at 03:29:08PM -0400, Ravi Nanavati wrote: > I think we could drag the NYT in. They have clearly reported on, and IIRC, > posted links to DeCSS. Corley should ask the court whether he can point > at the NYT web stories on DeCSS, the NYT website, whether he could distribute > old editions of the NYT about DeCSS since he cannot report on DeCSS directly, > and on and on and on. At some point Kaplan and the MPAA have to trip over the > First Amendment and then we can start going back up the chain (since they > are all differences in degree, not kind). The ruling does mention that linking to a major newspaper's site (giving IIRC the LA Times as an example) that happens to link to DeCSS is OK. Sham -- http://sites.inka.de/risctaker/DeCSS/ "The first speech censored, the first thought forbidden, the first freedom denied, chains us all irrevocably." (Jean-Luc Picard) From dvd-discuss-owner@eon.law.harvard.edu Sun Aug 20 16:11:42 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA01126 for dvd-discuss-outgoing; Sun, 20 Aug 2000 16:11:42 -0400 Received: from prserv.net (out1.prserv.net [32.97.166.31]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id QAA01123 for ; Sun, 20 Aug 2000 16:11:41 -0400 Received: from patris.bel-kwinith.org ([32.100.244.226]) by prserv.net (out1) with SMTP id <2000082020104725202nks00e>; Sun, 20 Aug 2000 20:10:48 +0000 MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Date: Sun, 20 Aug 2000 12:10:45 -0400 (EDT) From: rst@alum.mit.edu To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] introduction In-Reply-To: <20000820172047.A23428@ramtop.demon.co.uk> References: <20000818210635.A28207@lemuria.org> <00081906523901.27287@frankenstein.lumbercartel.com> <20000819155255.A19478@ramtop.demon.co.uk> <00081908131600.27457@frankenstein.lumbercartel.com> <20000820102533.A21852@ramtop.demon.co.uk> <14751.57113.532946.269002@patris.bel-kwinith.org> <20000820172047.A23428@ramtop.demon.co.uk> X-Mailer: VM 6.43 under 20.4 "Emerald" XEmacs Lucid Message-ID: <14751.65304.811214.879001@patris.bel-kwinith.org> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Phil Harrison writes: > > No. This keeps coming up, and the answer is no. If you want a DVD > > which can be viewed by existing players and also by free software > > which is legal under *all* interpretations of the law, that's very > > easy to arrange --- just don't apply CSS to the .vob files on the DVD. > > So, if that's what you want, then neither CSS nor the DMCA is doing > > anything to impede your freedom of expression. > > But what if I want to exclude non-GPL players that are not CSS > licensed? I can't do that without CSS encrypting the content, can > I? So you're trying to use CSS to impose your own set of conditions on the players (player license either DVD-CCA *or* GPL). But I don't think that makes any sense. To rehash some argument from: http://eon.law.harvard.edu/archive/dvd-discuss/msg06783.html if you do want to protect a work with CSS, then you need the MPAA's case to stick (CSS decoding only with a DVD-CCA license), since the protection comes entirely from the [copy and use controls imposed on players by the] license, and not at all from CSS itself. You might want some other set of protections than the CSS license provides, but CSS can't and won't give that to you --- if you could impose your own licensing terms, then so could anyone else, and the protection would be completely vitiated. Which isn't a problem with CSS [or the law] --- the studios want the protections that it provides; if you want something else, you're free to design your own machinery. In short, there's no earthly reason to distribute CSS-encoded content *unless you want the exact set of copy and use restrictions that the DVD-CCA's license mandates* --- and if that's what you want, then the DVD-CCA will give it to you happily. Either way, you, as a potential CSS-content-distributor, have nothing to complain about. rst From dvd-discuss-owner@eon.law.harvard.edu Sun Aug 20 16:13:32 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA01330 for dvd-discuss-outgoing; Sun, 20 Aug 2000 16:13:32 -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 QAA01327 for ; Sun, 20 Aug 2000 16:13:30 -0400 Received: from ppp.anonymizer.com (c05-045.015.popsite.net [64.24.76.45]) by cyberpass.net (8.8.8/8.7.3) with ESMTP id NAA17965; Sun, 20 Aug 2000 13:15:33 -0700 (PDT) Message-Id: <4.3.2.7.2.20000820123235.00b3cc50@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: Sun, 20 Aug 2000 13:13:14 -0700 To: dvd-discuss@eon.law.harvard.edu, dvd-discuss@eon.law.harvard.edu From: "James S. Tyre" Subject: Re: [dvd-discuss] code as speech In-Reply-To: <00082009494301.07583@frankenstein.lumbercartel.com> References: <4.3.2.7.2.20000819231110.00bf4820@127.0.0.1> <8nnfp9$gq1$1@blowfish.isaac.cs.berkeley.edu> <4.3.2.7.2.20000819231110.00bf4820@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 09:36 AM 8/20/2000 -0700, D. C. Sessions wrote: >Since those cases were covered by the national security exeption they >might not be directly relevent, but we need to remember that in the course >the Ninth Circuit came down pretty hard against distinguishing between >paper and electronic publication. Never went outside of the Ninth, but the >result was very similar to Reno v ACLU. > >The California case is headed straight towards this, since it IS in the Ninth >Circuit and they've actually included Copyleft in the mix. Should be fun. > > > BTW, t-shirt distribution is an issue in the California state court case, > > now that copyleft.net has been served. They sell t-shirts with the code, > > but (I think) they don't distribute the code itself on the Net (unless one > > can actually read it at > > http://www.copyleft.net/images/products/249/full_276_back.jpg, which I > can't). > >Copyleft doesn't publish the code online, but they do package a listing with >the shirts (looking at mine). Again, since that case is in the Ninth Circuit >they don't really have much to lose in adding Copyleft. Clarification: CA is one of several states within the Ninth, but the case is not, and will not be, in the Ninth Circuit Court of Appeals. It is a state court case, not a federal court case, and (leaving aside habeas writs in criminal cases and a few other exceptions), federal appellate courts do not get involved in state court cases. Appellate sequence for federal/state court cases in that part of CA: Federal court: 1. United Stated District Court, Northern District of CA (trial court); 2. Ninth U.S. Circuit Court of Appeals; 3. (maybe) U.S. Supreme Court State Court: 1. Superior Court for the County of Santa Clara (trial court); 2. Calif. Sixth District Court of Appeal; 3. (maybe) Calif. Supreme Court; 4. (maybe) U.S. Supreme Court Also: The Calif case by DVDCCA is not, and cannot be, either a DMCA case or even a more general copyright case. Some federal statutes allow for concurrent jurisdiction between state and federal courts (meaning that either can decide claims made under those statutes). Others are quite explicit that federal courts have exclusive jurisdiction, meaning that state courts cannot get involved in issues arising under those statutes. Copyright law in general is exclusive federal court jurisdiction. The sole claim made by DVDCCA is an alleged trade secrets claim, which is a Calif. state law claim. A few other notes, as long as I'm typing this mini-lesson in civil procedure. Just as the U.S.S.C. has essentially unlimited discretion in which cases it chooses to hear (or not), so does the CA Supreme Court (except in death penalty appeals, obviously not applicable here). Parties get one, and only one, automatic appeal, after that, it is within the discretion of the next higher court. And the USSC can *not* take the case simply if it might feel like it. In cases arising from state court systems, construing state law, the USSC can get involved *only* if the construction of the state law by the highest lower court in the chain arguably runs afoul of the U.S. Const. For example, if the end result in the CA case is that Defendants have not misappropriated DVDCCA's trade secrets (which would include that it isn't a trade secret to begin with), then the USSC can not touch it absent some theory I've not yet gleaned on how that would (arguably) violate the constitutional rights of DVDCCA. On the other hand, if DVDCCA does prevail, then (without regard to whether the USSC actually would take the case), the USSC could take the case on the grounds that the state law, as applied in the case, arguably violates defendants' First Amendment rights. -------------------------------------------------------------------- James S. Tyre mailto:jstyre@jstyre.com 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 Aug 20 16:20:19 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA01385 for dvd-discuss-outgoing; Sun, 20 Aug 2000 16:20:19 -0400 Received: from smtp05.primenet.com (smtp05.primenet.com [206.165.6.135]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id QAA01382 for ; Sun, 20 Aug 2000 16:20:13 -0400 Received: (from daemon@localhost) by smtp05.primenet.com (8.9.3/8.9.3) id NAA16153 for ; Sun, 20 Aug 2000 13:20:19 -0700 (MST) Received: from sessions.phx.primenet.com(206.132.239.114), claiming to be "heorot.lumbercartel.com" via SMTP by smtp05.primenet.com, id smtpdAAAPOaaGF; Sun Aug 20 13:20:11 2000 Received: from frankenstein.lumbercartel.com (IDENT:dcs@frankenstein.lumbercartel.com [192.168.6.2]) by heorot.lumbercartel.com (8.9.3/8.8.7) with SMTP id NAA17185 for ; Sun, 20 Aug 2000 13:20:02 -0700 From: "D. C. Sessions" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] 2600's "list" of mirrors Date: Sun, 20 Aug 2000 13:15:19 -0700 X-Mailer: KMail [version 1.0.29] Content-Type: text/plain References: <00082011293403.01179@leopard.lan> <39A03184.7175BC6C@mit.edu> <20000820214050.A27856@inka.de> In-Reply-To: <20000820214050.A27856@inka.de> MIME-Version: 1.0 Message-Id: <00082013185800.08181@frankenstein.lumbercartel.com> Content-Transfer-Encoding: 8bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sun, 20 Aug 2000, Sham Gardner wrote: > On Sun, Aug 20, 2000 at 03:29:08PM -0400, Ravi Nanavati wrote: > > I think we could drag the NYT in. They have clearly reported on, and IIRC, > > posted links to DeCSS. Corley should ask the court whether he can point > > at the NYT web stories on DeCSS, the NYT website, whether he could distribute > > old editions of the NYT about DeCSS since he cannot report on DeCSS directly, > > and on and on and on. At some point Kaplan and the MPAA have to trip over the > > First Amendment and then we can start going back up the chain (since they > > are all differences in degree, not kind). > > The ruling does mention that linking to a major newspaper's site (giving > IIRC the LA Times as an example) that happens to link to DeCSS is OK. So now we work our way down the chain from "major newspapers" to progressively smaller news outlets. And again, at some point Kaplan runs into a dilemma: declare a legal distinction between presses (sort of, "all presses are free, but some are freeer than others") or else run into 2600 publishing a reference to a /. posting. -- | Microsoft: "A reputation for releasing inferior software will make | | it more difficult for a software vendor to induce customers to pay | | for new products or new versions of existing products." | +----------- D. C. & M. V. Sessions ----------+ From dvd-discuss-owner@eon.law.harvard.edu Sun Aug 20 17:23:35 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA02729 for dvd-discuss-outgoing; Sun, 20 Aug 2000 17:23:35 -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 RAA02726 for ; Sun, 20 Aug 2000 17:23:24 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id RAA04624 for dvd-discuss@eon.law.harvard.edu; Sun, 20 Aug 2000 17:31:20 -0400 Date: Sun, 20 Aug 2000 17:31:15 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] 2600's "list" of mirrors Message-ID: <20000820173114.B3667@eldritchpress.org> References: <00082011293403.01179@leopard.lan> <20000820014910.B16207@lemuria.org> <00081917533501.03387@frankenstein.lumbercartel.com> <39A03184.7175BC6C@mit.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <39A03184.7175BC6C@mit.edu>; from ravi_n@mit.edu on Sun, Aug 20, 2000 at 03:29:08PM -0400 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sun, Aug 20, 2000 at 03:29:08PM -0400, Ravi Nanavati wrote: >... > I think we could drag the NYT in. They have clearly reported on, and IIRC, > posted links to DeCSS. Corley should ask the court whether he can point > at the NYT web stories on DeCSS, the NYT website, whether he could distribute > old editions of the NYT about DeCSS since he cannot report on DeCSS directly, > and on and on and on. At some point Kaplan and the MPAA have to trip over the > First Amendment and then we can start going back up the chain (since they > are all differences in degree, not kind). The New York Times is also a sponsor of part of the Universal Library at CMU that Dr Shamos is head of, and of which he used the resources in his little project for the MPAA. From dvd-discuss-owner@eon.law.harvard.edu Sun Aug 20 17:38:47 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA03051 for dvd-discuss-outgoing; Sun, 20 Aug 2000 17:38:47 -0400 Received: from tneu.visi.com (tneu.visi.com [209.98.6.48]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA03048 for ; Sun, 20 Aug 2000 17:38:45 -0400 Received: by tneu.visi.com (Postfix, from userid 99) id F3AE63A1; Sun, 20 Aug 2000 16:27:01 -0500 (CDT) From: "tim" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] 2600's "list" of mirrors X-Mailer: NeoMail 1.11 X-IPAddress: 163.228.19.198 MIME-Version: 1.0 Message-Id: <20000820212701.F3AE63A1@tneu.visi.com> Date: Sun, 20 Aug 2000 16:27:01 -0500 (CDT) Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > > > > Tom Vogt wrote: > > > > Daniel Richards wrote: > > > Im just curious, now that 2600 isn't allowed to link, what will > happen now that > > > they are listing the websites that carry the mirror? > > > http://www.2600.com/news/1999/1227-help.html > > > > most likely, MPAA will drag them into court again and get that banned, > too. > > since the intent is clearly to follow the letter of the judgement > while > > mocking the spirit, that shouldn't be difficult. > > > > I'm fairly sure 2600 will reply by changing the list to something that > > > SPELLS OUT the URLs - double-u,double-u,double-u,dot,... > > or, they could make links to pass arguments to popular search engines > which > will, in turn, respond with links. Links to meta-searchers are > especially abstract. > Sophistry? Not really, just a funny way to demonstrate the irony of the > situation. > It could look like this: > http://www.mindspring.com/~mickeym/irony.htm > > mickeym > > ym How appropriate. The California DeCSS case file is one of the first hits. (on altavista)... =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- ______ _ __ "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 / <_/ / / < / (_; Sun, 20 Aug 2000 18:11:02 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id SAA04652 for dvd-discuss@eon.law.harvard.edu; Sun, 20 Aug 2000 18:19:02 -0400 Date: Sun, 20 Aug 2000 18:18:57 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] DVD with LiViD license Message-ID: <20000820181857.C3667@eldritchpress.org> References: <20000818210635.A28207@lemuria.org> <00081906523901.27287@frankenstein.lumbercartel.com> <20000819155255.A19478@ramtop.demon.co.uk> <00081908131600.27457@frankenstein.lumbercartel.com> <20000820102533.A21852@ramtop.demon.co.uk> <14751.57113.532946.269002@patris.bel-kwinith.org> <20000820172047.A23428@ramtop.demon.co.uk> <14751.65304.811214.879001@patris.bel-kwinith.org> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <14751.65304.811214.879001@patris.bel-kwinith.org>; from rst@alum.mit.edu on Sun, Aug 20, 2000 at 12:10:45PM -0400 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sun, Aug 20, 2000 at 12:10:45PM -0400, rst@alum.mit.edu wrote: > Phil Harrison writes: > > > No. This keeps coming up, and the answer is no. If you want a DVD > > > which can be viewed by existing players and also by free software > > > which is legal under *all* interpretations of the law, that's very > > > easy to arrange --- just don't apply CSS to the .vob files on the DVD. > > > So, if that's what you want, then neither CSS nor the DMCA is doing > > > anything to impede your freedom of expression. > > > > But what if I want to exclude non-GPL players that are not CSS > > licensed? I can't do that without CSS encrypting the content, can > > I? > > So you're trying to use CSS to impose your own set of conditions on > the players (player license either DVD-CCA *or* GPL). But I don't > think that makes any sense. To rehash some argument from: > > http://eon.law.harvard.edu/archive/dvd-discuss/msg06783.html Somehow I missed this response. At this point, I think we have gone beyond the idea to issue a license to use DeCSS, and instead fallen back on the idea to license the use of LiViD. Let's consider that now. > if you do want to protect a work with CSS, then you need the MPAA's > case to stick (CSS decoding only with a DVD-CCA license), since the > protection comes entirely from the [copy and use controls imposed on > players by the] license, and not at all from CSS itself. I thought the only thing I needed, to protect a work with CSS, was to get a disc manufacturer to produce the disc. If that requires paying an "administrative fee" to DVD-CCA, okay. I don't see why I have to buy into all the rest. But you need a further step in the argument you haven't provided. Does the DVD-CCA contract or license with the content provider state that the content provider cannot issue any other use license than what the DVD-CCA wishes? I don't believe you have shown that. I think the DVD-CCA is simply relying on the technical fact that non-licensed players can't be legally produced and distributed. The difference is between the legal aspect and the technical aspect. You feel that somehow "circumvention" can be defined in just the license itself, I think. But here I am trying to say that if the content copyright holder specifies that LiViD can indeed be the decryption technique used, then by no means can LiViD be considered "circumvention" in any sense of 1201(a). Because it comes with the authorization of the *copyright holder* and not from the *DVD-CCA*. And 1201 defines authorization as coming from the *copyright holder*, I assert. >You might > want some other set of protections than the CSS license provides, but > CSS can't and won't give that to you --- if you could impose your own > licensing terms, then so could anyone else, and the protection would > be completely vitiated. Which isn't a problem with CSS [or the law] > --- the studios want the protections that it provides; if you want > something else, you're free to design your own machinery. > > In short, there's no earthly reason to distribute CSS-encoded content > *unless you want the exact set of copy and use restrictions that the > DVD-CCA's license mandates* --- and if that's what you want, then the > DVD-CCA will give it to you happily. Either way, you, as a potential > CSS-content-distributor, have nothing to complain about. So you assume that if FSF issued a compilation of public domain films and encrypted it with CSS and licensed it to Linux users and said it was okay to use LiViD, that DVD-CCA could sue and win on the basis of Kaplan? I still don't see how. The copyright holder has valid reasons for using CSS to encrypt the compilation. The compilation is copyrighted just as much as any Hollywood film. The disc purchaser has valid reasons for using some form of decryption to access the public domain films and possibly copy them. I don't see that DVD-CCA has any valid reasons to sue and prevent the sale of the disc, nor the issuance of such a license by the copyright holder. I think Kaplan agrees with this. And the fact that Barnes and Noble uses Microsoft Reader's encryption to scramble both copyrighted books and public domain books shows that Kaplan's points about the future are already here. As I understand it, LiViD does not differ from other CSS decryption methods. And it should not be considered a method to copy the other films issued on DVD, because it, unlike DeCSS.exe, does not have a copy function built in, as I understand the present version. But even if it did, or could have, its primary *commercial* use would be for the purchaser to use this very disc. Now, there may indeed be some DVD-CCA contract that would prohibit a copyright holder to issue some license that allowed someone to copy the film or access it in some way that DVD-CCA would not like. I think you would agree that this is far from the legislative intent of 1201? And it would be hard to justify it on constitutional grounds? How could DVD-CCA control all use in perpetuity, by means of copyright law? If such a contract clause exists, let us know it. And if the patent would restrict the use of LiViD, we need to know that too. But the law itself, even as Kaplan reads it, should not prevent us as copyright holders from issuing a CSS encrypted DVD as a compilation of public domain films with the license for users to use this on Linux with LiViD. So I think we could do this and let them sue us. My point is that we would be much better off in this case because there is no question of potential damage by future piracy, it is a case of damage to us as copyright holders, by the MPAA and DVD-CCA, who would be preventing us from selling the DVD. From dvd-discuss-owner@eon.law.harvard.edu Sun Aug 20 18:51:33 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA04593 for dvd-discuss-outgoing; Sun, 20 Aug 2000 18:51:33 -0400 Received: from smtp04.primenet.com (smtp04.primenet.com [206.165.6.134]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id SAA04590 for ; Sun, 20 Aug 2000 18:51:31 -0400 Received: (from daemon@localhost) by smtp04.primenet.com (8.9.3/8.9.3) id PAA18565 for ; Sun, 20 Aug 2000 15:49:43 -0700 (MST) Received: from sessions.phx.primenet.com(206.132.239.114), claiming to be "heorot.lumbercartel.com" via SMTP by smtp04.primenet.com, id smtpdAAAw.aWoK; Sun Aug 20 15:49:34 2000 Received: from frankenstein.lumbercartel.com (IDENT:dcs@frankenstein.lumbercartel.com [192.168.6.2]) by heorot.lumbercartel.com (8.9.3/8.8.7) with SMTP id PAA17701 for ; Sun, 20 Aug 2000 15:51:05 -0700 From: "D. C. Sessions" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] DVD with LiViD license Date: Sun, 20 Aug 2000 15:37:04 -0700 X-Mailer: KMail [version 1.0.29] Content-Type: text/plain References: <20000818210635.A28207@lemuria.org> <14751.65304.811214.879001@patris.bel-kwinith.org> <20000820181857.C3667@eldritchpress.org> In-Reply-To: <20000820181857.C3667@eldritchpress.org> MIME-Version: 1.0 Message-Id: <00082015503900.08300@frankenstein.lumbercartel.com> Content-Transfer-Encoding: 8bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sun, 20 Aug 2000, Eric Eldred wrote: > On Sun, Aug 20, 2000 at 12:10:45PM -0400, rst@alum.mit.edu wrote: > > In short, there's no earthly reason to distribute CSS-encoded content > > *unless you want the exact set of copy and use restrictions that the > > DVD-CCA's license mandates* --- and if that's what you want, then the > > DVD-CCA will give it to you happily. Either way, you, as a potential > > CSS-content-distributor, have nothing to complain about. > > So you assume that if FSF issued a compilation of public domain > films and encrypted it with CSS and licensed it to Linux users > and said it was okay to use LiViD, that DVD-CCA could sue and > win on the basis of Kaplan? I still don't see how. Whether they could or not, they wouldn't. It does them no good whatever. Their purpose is control of the player industry, not forclosure of distribution to indie producers. It's not clear that they *ever* want to forclose indie producers, since a great deal of filmmaking for instructional, etc., purposes is of no interest to them. Ship LiViD, OTOH, and they're after you for trafficing in circumvention devices. Which is completely independent of any hypothetical DVD. > As I understand it, LiViD does not differ from other CSS decryption > methods. And it should not be considered a method to copy the other > films issued on DVD, because it, unlike DeCSS.exe, does not have > a copy function built in, as I understand the present version. > But even if it did, or could have, its primary *commercial* use > would be for the purchaser to use this very disc. [DA] No, its primary commercial use would be illicit access to major motion pictures. Any other stated purpose is both irrelevent and quite possibly mendacious (remember the credence given to Johansen). In any case, one stupid little DVD which was made purely to muddy the water doesn't weigh against a multibillion-dollar industry in terms of commercial use. (Remember how worshipfully Kaplan describes the economics of the movie industry.) So, a contrived case involving a DVD won't matter at all. > So I think we could do this and let them sue us. My point is that > we would be much better off in this case because there is no > question of potential damage by future piracy, it is a case of > damage to us as copyright holders, by the MPAA and DVD-CCA, who > would be preventing us from selling the DVD. No, they wouldn't lift a finger against selling the DVD. Just against distributing LiViD. If you argue that you, as copyright holders, have the right to demand (as they do) that your works only be played on players of your choice, they agree. If you demand that you therefore have a right to distribute players that meet your demands, they ask where that came from. You're still trying to use the First Amendment to legalize heroin. It just doesn't work that way. If you want to legalize heroin, you need a better argument than "copyright holders can have anything they want by placing it as a condition of access." -- | Microsoft: "A reputation for releasing inferior software will make | | it more difficult for a software vendor to induce customers to pay | | for new products or new versions of existing products." | +----------- D. C. & M. V. Sessions ----------+ From dvd-discuss-owner@eon.law.harvard.edu Sun Aug 20 20:08:03 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA04999 for dvd-discuss-outgoing; Sun, 20 Aug 2000 20:08:03 -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 UAA04996 for ; Sun, 20 Aug 2000 20:07:52 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id UAA04713 for dvd-discuss@eon.law.harvard.edu; Sun, 20 Aug 2000 20:15:53 -0400 Date: Sun, 20 Aug 2000 20:15:48 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] DVD with LiViD license Message-ID: <20000820201548.A4665@eldritchpress.org> References: <20000818210635.A28207@lemuria.org> <14751.65304.811214.879001@patris.bel-kwinith.org> <20000820181857.C3667@eldritchpress.org> <00082015503900.08300@frankenstein.lumbercartel.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <00082015503900.08300@frankenstein.lumbercartel.com>; from dcs@mailhost.lumbercartel.com on Sun, Aug 20, 2000 at 03:37:04PM -0700 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sun, Aug 20, 2000 at 03:37:04PM -0700, D. C. Sessions wrote: >... > You're still trying to use the First Amendment to legalize heroin. Heroin is already legal. It is only illegal to distribute it or possess it without a license. But the government won't give you a license to distribute a controlled substance unless you are a physician with some legitimate need. It doesn't mean that a physician can't write a prescription for a controlled substance. What you guys are saying is that the DVD-CCA won't give you any license for LiViD, and they can refuse to do so perfectly legally because they are authorized by the government to restrict the rights of copyright holders and the public, forever. But I don't think that is what Kaplan and Congress said. And if they really said that, then it's clearly unconstitutional. But in any case, I will shut up now and hope you guys will have the chance to go over the decision and point up things we need to respond to. From dvd-discuss-owner@eon.law.harvard.edu Sun Aug 20 20:38:30 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA05201 for dvd-discuss-outgoing; Sun, 20 Aug 2000 20:38:30 -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 UAA05198 for ; Sun, 20 Aug 2000 20:38:29 -0400 Received: from ip157.bedford2.ma.pub-ip.psi.net ([38.32.10.157]) by relay20.smtp.psi.net with smtp (Exim 3.13 #3) id 13Qfbk-0003V9-00 for dvd-discuss@eon.law.harvard.edu; Sun, 20 Aug 2000 20:38:33 -0400 From: Ron Gustavson To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] introduction Date: Sun, 20 Aug 2000 20:32:09 -0400 Message-ID: References: <20000818210635.A28207@lemuria.org> <00081906523901.27287@frankenstein.lumbercartel.com> <20000819155255.A19478@ramtop.demon.co.uk> <00081908131600.27457@frankenstein.lumbercartel.com> <20000820102533.A21852@ramtop.demon.co.uk> <14751.57113.532946.269002@patris.bel-kwinith.org> <20000820172047.A23428@ramtop.demon.co.uk> <14751.65304.811214.879001@patris.bel-kwinith.org> In-Reply-To: <14751.65304.811214.879001@patris.bel-kwinith.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 UAA05199 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sun, 20 Aug 2000 12:10:45 -0400 (EDT), rst wrote: >In short, there's no earthly reason to distribute CSS-encoded content >*unless you want the exact set of copy and use restrictions that the >DVD-CCA's license mandates* --- and if that's what you want, then the >DVD-CCA will give it to you happily. Either way, you, as a potential >CSS-content-distributor, have nothing to complain about. Maybe a better response would be to build a better mousetrap. I'm thinking of an access control scheme that at least acts as the law intends. It doesn't have to be foolproof, just better than CSS. And $5000/year cheaper. And open source. One approach: an initial DVD-Video title set menu that pops up on the screen and requests a key. This key will have been emailed to the user after he visits opendvd.org and enters his email address, which generates the key. You could have different color keys: for a blue disc, go to the blue page. Is this totally off the wall? __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Sun Aug 20 20:55:46 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA05366 for dvd-discuss-outgoing; Sun, 20 Aug 2000 20:55:46 -0400 Received: from tneu.visi.com (tneu.visi.com [209.98.6.48]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id UAA05363 for ; Sun, 20 Aug 2000 20:55:44 -0400 Received: from tneu.visi.com (tneu.visi.com [163.228.19.198]) by tneu.visi.com (Postfix) with ESMTP id 0D97721D for ; Sun, 20 Aug 2000 19:22:55 -0500 (CDT) Date: Sun, 20 Aug 2000 19:22:54 -0500 (CDT) From: tim To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] MPAA FAQs In-Reply-To: <20000820201548.A4665@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 It's been quite a long time since we've done any work on the MPAA DVD FAQ Rebuttal. (http://www.visi.com/~tneu/mpaafaq.html) I happened to stop by the MPAA's web site, and it seems they have created a new "Hyperlink - FAQ". It's probably been there for a while... Do we want to make a rebuttal to this FAQ as well? How about finishing our other FAQ? Or perhaps we should include both FAQs in the same same rebuttal document. Is this still worth pursuing? If we would be better off focusing our efforts on the appeal, that would obviously be more important than this at the moment. Their new FAQ might also be a moot point, as the judge has already ruled on the hyperlinking issue. We could however, provide legal citations as to why we disagree with the judge's ruling. The MPAA is using PR as a weapon in this case, and they are likely to continue getting away with it as long as we are silent. Contents of their FAQ below: -------- What is a hyperlink? A "hyperlink" is a software instruction embedded on a Web site which, when executed, causes a signal to be sent to another Internet location where data or material can be retrieved for viewing, copying or further transmission. Hyperlinks enable a computer user to quickly locate and retrieve data from another file or Web site location without the necessity of having to search for it, or manually input its Internet address. A hyperlink puts the data or material immediately at hand. All the computer user needs to do is click on the icon or underlined text that indicates the presence of a hyperlink and he or she will be taken to the desired data or material almost instantaneously. Why is the 2600 Enterprises' Web site's hyperlinking a problem for the motion picture studios? On January 20, Judge Kaplan ordered the 2600.com web site, and two other Web sites, to stop posting the software utility DeCSS that circumvents the copy protection on DVDs. However, 2600 has created more than 350 active hyperlinks to the DeCSS software on other websites. There is no practical difference between the 2600 Web site's posting of DeCSS, and hyperlinking to other Web pages from which DeCSS can be downloaded. 2600's, "Emmanuel Goldstein," has clearly articulated his objective, to thumb his nose at the judge's order and show his disdain for copyright law. After the judge's order, Goldstein put out a call to users of his Web site to reproduce DeCSS elsewhere on the Internet, and then to help him in creating the necessary hyperlinks to those sites. His actions have forced the motion picture studios to ask the judge for additional relief. What is this Motion all about? The MPAA is only asking the Court to enter an injunction against Eric Corley, a/k/a "Emmanuel Goldstein" and those persons acting in concert with him, in the use of DeCSS hyperlinks. Since Judge Kaplan's January 20th ruling that barred the posting of the DeCSS utility, the defendant has blatantly attempted to evade the practical impact of that order by exhorting others to post DeCSS as many places as possible on the Internet, and has created hyperlinks that link directly to the DeCSS program on these other sites. The list of DeCSS hyperlinks on the 2600 Enterprises web site has grown to over 350 sites, making the defendant's site, in effect, a distribution center for the ready availability and delivery of DeCSS. Distributing or trafficking in software that circumvents copy protection is illegal under federal law. Doesn't restricting the use of hyperlinks infringe the First Amendment's protection of free speech? United States law recognizes that freedom of expression and protection of copyrighted material go hand in hand. The MPAA defends Mr. Goldstein's right to criticize the MPAA on his web site, but his right to express his views does not give him the right to use his web site as an engine for distributing an illegal software program that allows unathorized and illegal access and copying of motion pictures. "Emmanuel Goldstein" has no more right to distribute DeCSS in this way than he would to distribute keys to your house and a map because he did not like your furniture. -- =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- ______ _ __ "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 / <_/ / / < / (_; Sun, 20 Aug 2000 22:19:01 -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 WAA17349 for ; Sun, 20 Aug 2000 22:19:04 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id WAA04451; Sun, 20 Aug 2000 22:19:03 -0400 (EDT) Date: Sun, 20 Aug 2000 22:19:03 -0400 (EDT) Message-Id: <200008210219.WAA04451@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] introduction In-Reply-To: References: <20000818210635.A28207@lemuria.org> <00081906523901.27287@frankenstein.lumbercartel.com> <20000819155255.A19478@ramtop.demon.co.uk> <00081908131600.27457@frankenstein.lumbercartel.com> <20000820102533.A21852@ramtop.demon.co.uk> <14751.57113.532946.269002@patris.bel-kwinith.org> <20000820172047.A23428@ramtop.demon.co.uk> <14751.65304.811214.879001@patris.bel-kwinith.org> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Ron Gustavson writes: > Maybe a better response would be to build a better mousetrap. > > I'm thinking of an access control scheme that at least acts as the > law intends. It doesn't have to be foolproof, just better than > CSS. And $5000/year cheaper. And open source. > > One approach: an initial DVD-Video title set menu that pops up on > the screen and requests a key. This key will have been emailed to > the user after he visits opendvd.org and enters his email address, > which generates the key. Ummm... I'm not sure I see the point. Certainly, the movie studios won't go for any such scheme for numerous reasons, beginning with user convenience. I can think of one way for examples of alternative access control schemes to be helpful --- if you have an alternative interpretation of the access control provisions of the DMCA which is preferable in some respect, you can use examples of access control schemes that fit your model to demonstrate that your interpretation is compatible with Congressional intent, and does leave the studios with meaningful statutory protection for their work. That's how I used the example access controls in my authority paper, for example --- but existing, deployed systems were sufficient to make the point, and they also don't let the studios claim that your scheme was made up for the sake of the argument, and (for some specious reason) wouldn't work in the real world. rst From dvd-discuss-owner@eon.law.harvard.edu Sun Aug 20 22:32:31 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA08516 for dvd-discuss-outgoing; Sun, 20 Aug 2000 22:32:31 -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 WAA08513 for ; Sun, 20 Aug 2000 22:32:30 -0400 Message-ID: <20000821023203.15856.qmail@web513.mail.yahoo.com> Received: from [64.81.25.36] by web513.mail.yahoo.com; Sun, 20 Aug 2000 19:32:03 PDT Date: Sun, 20 Aug 2000 19:32:03 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] code as speech To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --- "James S. Tyre" wrote: > Also: The Calif case by DVDCCA is not, and cannot be, either a DMCA > case or even a more general copyright case. Some federal > statutes allow for concurrent jurisdiction between state and > federal courts (meaning that either can decide claims made > under those statutes). Others are quite explicit that federal > courts have exclusive jurisdiction, meaning that state courts > cannot get involved in issues arising under those statutes. > Copyright law in general is exclusive federal court jurisdiction. > The sole claim made by DVDCCA is an alleged trade secrets > claim, which is a Calif. state law claim. The trade secret claim rests solely on the enforcability of a copyright licence agreement, though. If the defense wants to make the argument that federal copyright law preempts the enforcement of a no reverse engineering term in a mass-market contract of adhesion, wouldn't federal court be the proper place for such a claim? One of the cases requiring express assent for contract modification is a 9th Circuit Appeas court case Expeditors v. Official Creditors 166 F.3d 1012 (9th Cir 1999), so I would think there would be a tremendous defense advantage to move the trial to a Federal Court if that can be done. The above case relied heavily on Step-Saver v Wyse and ignored ProCD v Zeidenberg (which is at odds with Step-Saver), by the way. __________________________________________________ Do You Yahoo!? Yahoo! Mail – Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Sun Aug 20 23:02:40 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA08878 for dvd-discuss-outgoing; Sun, 20 Aug 2000 23:02:40 -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 XAA08875 for ; Sun, 20 Aug 2000 23:02:38 -0400 Received: from ppp.anonymizer.com (c6T2-173.015.popsite.net [216.126.189.173]) by cyberpass.net (8.8.8/8.7.3) with ESMTP id UAA07991; Sun, 20 Aug 2000 20:04:50 -0700 (PDT) Message-Id: <4.3.2.7.2.20000820192703.04de19d0@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: Sun, 20 Aug 2000 20:02:34 -0700 To: dvd-discuss@eon.law.harvard.edu, dvd-discuss@eon.law.harvard.edu From: "James S. Tyre" Subject: Re: [dvd-discuss] code as speech Cc: junger@samsara.law.cwru.edu In-Reply-To: <200008201716.NAA30478@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 01:15 PM 8/20/2000 -0400, Peter D. Junger wrote: >"James S. Tyre" writes: > > >: >: >: OK, but you need to throw another factor into the mix here: DMCA does not >: purport to regulate t-shirts. > >It purports to limit the distribution of technology. It doesn't distinguish >between t-shirts and floppy disks and making it available on a server >on the Internet. Or at least that is the way I read it at a superficial >level, though I actually think that a careful reading of 17 U.S.C. >1201(a)(2) suggests that the limitation applies to devices, like computers, >rather than texts like computer code. (The careful reading avoids a >lot of constitutional issues.) Peter, it's not normal for me to disagree with you, but what the heck. ;-) I don't think you can limit 1201(a)(2) to devices, if all we're talking about here is pure statutory construction. It provides: "(2) No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that ...." Technology, product, service, component must have some meaning other than device. Certainly, "service" must even if the other terms potentially are redundant. But as to whether 1201(a)(2) distinguishes between t-shirts and floppies, at least implicitly it does. The technology, product, service, device, component, or part thereof is a no-no only if it: "(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; (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 (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." Without re-opening the question of what circumvention is, and whether DeCSS does circumvent, it would be incredulous, even for the MPAA, to assert that a t-shirt with the code is "primarily designed or produced" to circumvent. Being slightly sarcastic here (not at you, just at the whole idea), what are you going to do, wipe the t-shirt across the disc and magically erase CSS? T-shirts are primarily designed to cover one's upper body, and sometimes, to make statements, banal, humorous or serious, but that's about it. As to (B) and (C), again, how can a t-shirt be used to circumvent? A floppy loaded with the right source could (again, speaking generally, not DeCSS-specific), but not a piece of clothing. So while 1201 (a)(2) says nothing about clothing, it is hard to construe it in such a manner as to ban a T. >: Yes, you're talking constitution, and the constitution always will trump a >: statute, but, within limits, a judge is supposed to try to "read" a statute >: in such a way as to make it constitutional. Consequently, if one removes >: DMCA from the equation, one cannot necessarily assume that Kaplan's ruling >: would be the same for a t-shirt. > >How can you leave the DMCA out and have any issue for a court to decide? General copyright law, or, as has become an issue in the California case, trade secret law. Unfair competition, various other business torts come to mind, depending on the facts. All are issues which may be addressed by a court, but not Kaplan's court. -------------------------------------------------------------------- James S. Tyre mailto:jstyre@jstyre.com 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 Aug 20 23:25:31 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA09941 for dvd-discuss-outgoing; Sun, 20 Aug 2000 23:25:31 -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 XAA09938 for ; Sun, 20 Aug 2000 23:25:30 -0400 Received: from mit.edu (h0050da62b39d.ne.mediaone.net [24.147.217.121]) by chmls05.mediaone.net (8.8.7/8.8.7) with ESMTP id XAA17467; Sun, 20 Aug 2000 23:25:34 -0400 (EDT) Message-ID: <39A0A1A3.66B5325A@mit.edu> Date: Sun, 20 Aug 2000 23:27:31 -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] code as speech References: <4.3.2.7.2.20000820192703.04de19d0@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 01:15 PM 8/20/2000 -0400, Peter D. Junger wrote: > >"James S. Tyre" writes: > > > > > >: > >: > >: OK, but you need to throw another factor into the mix here: DMCA does not > >: purport to regulate t-shirts. > > > >It purports to limit the distribution of technology. It doesn't distinguish > >between t-shirts and floppy disks and making it available on a server > >on the Internet. Or at least that is the way I read it at a superficial > >level, though I actually think that a careful reading of 17 U.S.C. > >1201(a)(2) suggests that the limitation applies to devices, like computers, > >rather than texts like computer code. (The careful reading avoids a > >lot of constitutional issues.) > > Peter, it's not normal for me to disagree with you, but what the heck. ;-) > > I don't think you can limit 1201(a)(2) to devices, if all we're talking > about here is pure statutory construction. It provides: > > "(2) No person shall manufacture, import, offer to the public, > provide, or otherwise traffic in any technology, product, service, > device, component, or part thereof, that ...." > > Technology, product, service, component must have some meaning other than > device. Certainly, "service" must even if the other terms potentially are > redundant. > > But as to whether 1201(a)(2) distinguishes between t-shirts and floppies, > at least implicitly it does. The technology, product, service, device, > component, or part thereof is a no-no only if it: > > "(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; > (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 > (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." > > Without re-opening the question of what circumvention is, and whether DeCSS > does circumvent, it would be incredulous, even for the MPAA, to assert that > a t-shirt with the code is "primarily designed or produced" to > circumvent. Being slightly sarcastic here (not at you, just at the whole > idea), what are you going to do, wipe the t-shirt across the disc and > magically erase CSS? T-shirts are primarily designed to cover one's upper > body, and sometimes, to make statements, banal, humorous or serious, but > that's about it. > > As to (B) and (C), again, how can a t-shirt be used to circumvent? A > floppy loaded with the right source could (again, speaking generally, not > DeCSS-specific), but not a piece of clothing. So while 1201 (a)(2) says > nothing about clothing, it is hard to construe it in such a manner as to > ban a T. > > >: Yes, you're talking constitution, and the constitution always will trump a > >: statute, but, within limits, a judge is supposed to try to "read" a statute > >: in such a way as to make it constitutional. Consequently, if one removes > >: DMCA from the equation, one cannot necessarily assume that Kaplan's ruling > >: would be the same for a t-shirt. > > > >How can you leave the DMCA out and have any issue for a court to decide? > > General copyright law, or, as has become an issue in the California case, > trade secret law. Unfair competition, various other business torts come to > mind, depending on the facts. All are issues which may be addressed by a > court, but not Kaplan's court. > If they wanted to go after the T-shirts under the DMCA they'd use clause (C), I think. The T-shirt itself cannot be used to circumvent, but neither can the source code on a website. What both do, however, it give someone precise enough information so that they are able to circumvent a technological measure. The argument would be that selling T-shirts with code on them (and with them), rather than just T-shirts with "Stop the MPAA" or the DVD CCA crossed out, etc. is of limited commercial significance and was designed to disseminate the code. I don't think its a winning argument, and I think I think its dumb strategy (you boil the frog slowly, you don't fry him), but then: 1) I never dreamed the DVD CCA would add Copyleft in the California case. Does the EFF have some PR moles in there? Those T-shirts are now flying out of the warehouse and the EFF gets $4 for each one sold. 2) I thought Kaplan wouldn't uphold the ban on hyperlinks in his final ruling. The cat is out of the bag. They can't realistically prevent anyone who wants DeCSS from getting it (the same way they can't prevent anyone who really wants to pirate movies doing so), so the ban on hyperlinks doesn't do much to advance the plaintiffs' cause. IMO, it just makes the final ruling look much less reasonable and much more open to challenge on appeal. - Ravi Nanavati From dvd-discuss-owner@eon.law.harvard.edu Sun Aug 20 23:58:54 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA10672 for dvd-discuss-outgoing; Sun, 20 Aug 2000 23:58:54 -0400 Received: from smtp03.primenet.com (smtp03.primenet.com [206.165.6.133]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id XAA10669 for ; Sun, 20 Aug 2000 23:58:53 -0400 Received: (from daemon@localhost) by smtp03.primenet.com (8.9.3/8.9.3) id UAA25697 for ; Sun, 20 Aug 2000 20:57:53 -0700 (MST) Received: from sessions.phx.primenet.com(206.132.239.114), claiming to be "heorot.lumbercartel.com" via SMTP by smtp03.primenet.com, id smtpdAAAn6ayfY; Sun Aug 20 20:57:39 2000 Received: from frankenstein.lumbercartel.com (IDENT:dcs@frankenstein.lumbercartel.com [192.168.6.2]) by heorot.lumbercartel.com (8.9.3/8.8.7) with SMTP id UAA18711 for ; Sun, 20 Aug 2000 20:58:09 -0700 From: "D. C. Sessions" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] code as speech Date: Sun, 20 Aug 2000 20:38:52 -0700 X-Mailer: KMail [version 1.0.29] Content-Type: text/plain References: <4.3.2.7.2.20000819231110.00bf4820@127.0.0.1> <4.3.2.7.2.20000820192703.04de19d0@127.0.0.1> In-Reply-To: <4.3.2.7.2.20000820192703.04de19d0@127.0.0.1> MIME-Version: 1.0 Message-Id: <00082020580000.08555@frankenstein.lumbercartel.com> Content-Transfer-Encoding: 8bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sun, 20 Aug 2000, James S. Tyre wrote: > I don't think you can limit 1201(a)(2) to devices, if all we're talking > about here is pure statutory construction. It provides: > > "(2) No person shall manufacture, import, offer to the public, > provide, or otherwise traffic in any technology, product, service, > device, component, or part thereof, that ...." Let's take technology. A technology is, at essence, knowledge. So this clause essentially establishes a class of forbidden knowledge. (Interesting concept in its own right, that.) Also, let's imagine that "or part thereof" is directly modified by the "primarily used etc." clause because otherwise all parts of something used by a circumvention device become illegal. Imagine Federal marshalls rounding up all of the if() statements worldwide :-) Although one is then left wondering how large a collection of code has to be to become anathema. > But as to whether 1201(a)(2) distinguishes between t-shirts and floppies, > at least implicitly it does. The technology, product, service, device, > component, or part thereof is a no-no only if it: T-shirt or floppy, both can carry bits. Sure, the floppy can be used to play Frisbee and the t-shirt can avoid indecent exposure, but for purposes of the statute they can both convey forbidden knowledge (technology). > "(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; > (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 > (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." > Without re-opening the question of what circumvention is, and whether DeCSS > does circumvent, it would be incredulous, even for the MPAA, to assert that > a t-shirt with the code is "primarily designed or produced" to > circumvent. Being slightly sarcastic here (not at you, just at the whole > idea), what are you going to do, wipe the t-shirt across the disc and > magically erase CSS? T-shirts are primarily designed to cover one's upper > body, and sometimes, to make statements, banal, humorous or serious, but > that's about it. The bits on a floppy, on a webpage, on a barcode, whatever. It's all bits. Mathematics and the law don't seem to be all that far apart here; the only difference is that for some of the traditionalists the issues are clearer with t-shirts because they are used to political speech on t-shirts but computer languages look -- well, mechanical. > As to (B) and (C), again, how can a t-shirt be used to circumvent? A > floppy loaded with the right source could (again, speaking generally, not > DeCSS-specific), but not a piece of clothing. So while 1201 (a)(2) says > nothing about clothing, it is hard to construe it in such a manner as to > ban a T. The statute prohibits making a technology available to the public. The code and the t-shirt can both be used to convey that technology. After all, I can run the t-shirt though OCR. No matter how it's conveyed, the forbidden knowledge gets out and that's against the statute. Or at least it is if you buy the premise that DeCSS is a circumvention means. The cool thing about the DMCA (as distinct from trade-secret law) is that it makes certain knowledge forever prohibited. Not just restricted in application, but even forbiddent to talk about it. It doesn't matter if the cat is out of the bag, it doesn't matter whose patents are involved, it doesn't matter if a thousand years have gone by. It's still illegal to teach, discuss, or otherwise communicate the forbidden knowledge. If, tomorrow, the USPTO issued a patent to me on a means for breaking CSS the patent office would be in violation of the law for publishing it. Now THAT is a great law. -- | Microsoft: "A reputation for releasing inferior software will make | | it more difficult for a software vendor to induce customers to pay | | for new products or new versions of existing products." | +----------- D. C. & M. V. Sessions ----------+ From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 21 00:00:31 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA10763 for dvd-discuss-outgoing; Mon, 21 Aug 2000 00:00:31 -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 AAA10760 for ; Mon, 21 Aug 2000 00:00:19 -0400 Received: from ppp.anonymizer.com (c6T2-173.015.popsite.net [216.126.189.173]) by cyberpass.net (8.8.8/8.7.3) with ESMTP id VAA15084; Sun, 20 Aug 2000 21:02:26 -0700 (PDT) Message-Id: <4.3.2.7.2.20000820204301.00a96be0@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: Sun, 20 Aug 2000 21:00:11 -0700 To: dvd-discuss@eon.law.harvard.edu, dvd-discuss@eon.law.harvard.edu From: "James S. Tyre" Subject: Re: [dvd-discuss] code as speech In-Reply-To: <20000821023203.15856.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 07:32 PM 8/20/2000 -0700, Bryan Taylor wrote: >--- "James S. Tyre" wrote: > > > Also: The Calif case by DVDCCA is not, and cannot be, either a DMCA > > case or even a more general copyright case. Some federal > > statutes allow for concurrent jurisdiction between state and > > federal courts (meaning that either can decide claims made > > under those statutes). Others are quite explicit that federal > > courts have exclusive jurisdiction, meaning that state courts > > cannot get involved in issues arising under those statutes. > > Copyright law in general is exclusive federal court jurisdiction. > > The sole claim made by DVDCCA is an alleged trade secrets > > claim, which is a Calif. state law claim. > >The trade secret claim rests solely on the enforcability of a copyright >licence agreement, though. If the defense wants to make the argument >that federal copyright law preempts the enforcement of a no reverse >engineering term in a mass-market contract of adhesion, wouldn't >federal court be the proper place for such a claim? Please correct me if I am wrong, but I think you're mixing and matching two concepts here. The CSS license agreement pertains to matters which are copyrighted (movies), but it is not itself formally copyrighted, I believe. The issue you raise is more one of contract law (which is state law) than of copyright law (which is federal law); although, I confess, I'm a bit unfocused at the moment. Also: I am not an expert in all of the permutations and combinations of when a case can be removed from state to federal court, but the general rule is that the propriety of removal is judged by the allegations made in the Complaint, not by potential defenses; particularly where, as here, what is known as diversity of citizenship (none of the plaintiffs are in the same state as any of the defendants) does not exist. That general rule could lead to a strange result: a Complaint raises state law issues, the defense is based not just on any federal law, but on a federal law over which the federal courts have exclusive jurisdiction, yet the case cannot be removed to federal court. It doesn't sound right, but I would have to research removal jurisdiction far more than I ever have had the need to in order to see if there is an "out" for that type of situation, or if it just is one of those oddities in the law. In other words, I don't know. This lawyer, at least, never claimed to know all. ;-) -------------------------------------------------------------------- James S. Tyre mailto:jstyre@jstyre.com 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 Aug 21 01:29:53 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id BAA11458 for dvd-discuss-outgoing; Mon, 21 Aug 2000 01:29:53 -0400 Received: from dial173.roadrunner.com (dial173.cybermesa.com [209.12.75.173] (may be forged)) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id BAA11455 for ; Mon, 21 Aug 2000 01:29:50 -0400 Received: (from paul@localhost) by dial173.roadrunner.com (8.8.7/8.8.7) id XAA00913 for dvd-discuss@eon.law.harvard.edu; Sun, 20 Aug 2000 23:31:20 -0600 Date: Sun, 20 Aug 2000 23:31:19 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] introduction Message-ID: <20000820233119.B727@localhost> References: <20000818210635.A28207@lemuria.org> <14749.64358.263678.23652@patris.bel-kwinith.org> <399E0B67.3739B344@mediaone.net> <00081906523901.27287@frankenstein.lumbercartel.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <00081906523901.27287@frankenstein.lumbercartel.com>; from dcs@mailhost.lumbercartel.com on Sat, Aug 19, 2000 at 06:50:04AM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sat, Aug 19, 2000 at 06:50:04AM -0700, D. C. Sessions wrote: > On Fri, 18 Aug 2000, Sphere wrote: > > > Don't provide LiVid. Just the disk. I can't > > watch the disk without LiViD. My Constitutional > > right to See/hear/read speech has been infringed. > > I want LiVid so I can know what is being said. > > > > Go after the right to hear free speech, not > > the right to produce it. Just provide the > > speech in a manner I cannot receive under > > the law and the law is itself a prior > > restraint of speech. > > [DA] The author shouldn't have required an illegal instrument for > access to the content then. Publishing a book in an invisible ink > which requires a heroin solution to become readable doesn't bring > heroin under the First Amendment. Heroin is a controlled substance. Use of heroin as a circumventing treatment does not make an analogy with DeCSS because the same heroin solution used with authorization to gain access would still be illegal because of its pharmacological properties. In other words --- DeCSS has no legal problems except for anti-circumvention. Heroin has legal problems outside copyright. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 21 01:39:58 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id BAA11573 for dvd-discuss-outgoing; Mon, 21 Aug 2000 01:39:58 -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 BAA11570 for ; Mon, 21 Aug 2000 01:39:57 -0400 Message-ID: <20000821053930.8519.qmail@web509.mail.yahoo.com> Received: from [64.81.25.36] by web509.mail.yahoo.com; Sun, 20 Aug 2000 22:39:30 PDT Date: Sun, 20 Aug 2000 22:39:30 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] code as speech To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --- "James S. Tyre" wrote: > >The trade secret claim rests solely on the enforcability of a > >copyright licence agreement, though. If the defense wants to > >make the argument that federal copyright law preempts the > >enforcement of a no reverse engineering term in a mass-market > >contract of adhesion, wouldn't federal court be the proper > >place for such a claim? > > Please correct me if I am wrong, but I think you're mixing and > matching two concepts here. The CSS license agreement pertains > to matters which are copyrighted (movies), but it is not > itself formally copyrighted, I believe. I was talking about the XingDVD player program clickwrap licence, which purportedly binds the user not to reverse engineer the technology. Johansen allegedly ignored this (but there's no proof he accepted the clickwrap contract). Even though CA law expressly states that reverse engineering a trade secret is not misappropriation, the DVD-CCA line is that the clickwrap contract agreement not to reverse engineer overrides this. The argument against this, which was one of the precise issues from Vault v. Quaid is that state contract law, which might otherwise recognize the no-RE term, is preempted by the Federal Copyright Act. See Nimmer et. al in Metamorphosis of Contract into Expand, for more. > Also: I am not an expert in all of the permutations and combinations > of when a case can be removed from state to federal court, [...] These are the sorts of things that have kept me from going to law school. > ... but the general rule is that the propriety of removal is > judged by the allegations made in the Complaint, not by > potential defenses; particularly where, as here, what > is known as diversity of citizenship (none of the plaintiffs are in > the same state as any of the defendants) does not exist. > That general rule could lead to a strange result: a Complaint raises > state law issues, the defense is based not just on any federal > law, but on a federal law over which the federal courts have > exclusive jurisdiction, yet the case cannot be removed to federal > court. It doesn't sound right, but I would have to research > removal jurisdiction far more than I ever have > had the need to in order to see if there is an "out" for that type > of situation, or if it just is one of those oddities in the law. Bewilderment and perplexity, here. It seems odd that a state court could have the gavel on whether Federal law nullifies a state law. You'd kind of expect them to say "No" a lot: "Well we just don't think that should be the law down he-yah in the Sovereign State of Miss'ssippi." __________________________________________________ Do You Yahoo!? Yahoo! Mail – Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 21 02:13:58 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id CAA11665 for dvd-discuss-outgoing; Mon, 21 Aug 2000 02:13:58 -0400 Received: from mail.world-net.co.nz (mail.world-net.co.nz [203.96.119.27]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id CAA11662 for ; Mon, 21 Aug 2000 02:13:55 -0400 Received: from leopard.lan (nwp-54.world-net.co.nz [202.37.167.54]) by mail.world-net.co.nz (8.9.3/8.9.3) with SMTP id SAA26884 for ; Mon, 21 Aug 2000 18:10:08 +1200 From: Daniel Richards To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] code as speech Date: Mon, 21 Aug 2000 18:06:11 +1200 X-Mailer: KMail [version 1.0.29.2] Content-Type: text/plain References: <20000821053930.8519.qmail@web509.mail.yahoo.com> In-Reply-To: <20000821053930.8519.qmail@web509.mail.yahoo.com> MIME-Version: 1.0 Message-Id: <00082118105706.01179@leopard.lan> Content-Transfer-Encoding: 8bit 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 Mon, 21 Aug 2000, you wrote: [snip] > I was talking about the XingDVD player program clickwrap licence, which > purportedly binds the user not to reverse engineer the technology. > Johansen allegedly ignored this (but there's no proof he accepted the > clickwrap contract). Even though CA law expressly states that reverse > engineering a trade secret is not misappropriation, the DVD-CCA line is > that the clickwrap contract agreement not to reverse engineer overrides > this. The argument against this, which was one of the precise issues > from Vault v. Quaid is that state contract law, which might otherwise > recognize the no-RE term, is preempted by the Federal Copyright Act. > See Nimmer et. al in Metamorphosis of Contract into Expand, for more. FIrst of all, isn't REing LEGAL in Norway? I've heard that over there it's a right that can't be uspered by any kind of "shrink-wrap" "contracts". Also, Jon was 15 at the time DeCSS was released, arn't minors not allowed to agree to legal binding contracts (then you get to the issue of are click-thru licenses legally.. at least not here they arn't (NZ)). If a minor does agree to such a "contract" then what? How does the DVDCCA think to stop this thing when the REing didn't even take place in the US? (and some of the defendants in the DVDCCA case are listed as being outside the US) What exactly happens there? If im listed, can't I safely ignore the whole thing? I've seen posts on the list where people suggest NOT writing to the court trying to get out of this (without a lawyer) Also, what laws take precidence in the US? What about the DMCA and anti-trust laws? (Doesn't buying the DVD legally mean you have "authorisation"? But that's an entirely different can of ones and zero's) -----BEGIN PGP SIGNATURE----- Version: GnuPG v1.0.1 (GNU/Linux) Comment: For info see http://www.gnupg.org iD8DBQE5oMf4HxSqGAiQwxwRAtr2AJ9F/5nkklsChxjBnz2C1h5BytWtiQCeLlZ4 8xDag9LAZJsmGgKs1iPZ3mM= =I5ID -----END PGP SIGNATURE----- From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 21 02:56:55 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id CAA11800 for dvd-discuss-outgoing; Mon, 21 Aug 2000 02:56:55 -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 CAA11797 for ; Mon, 21 Aug 2000 02:56:54 -0400 Received: from ip24.bedford3.ma.pub-ip.psi.net ([38.32.11.24]) by relay20.smtp.psi.net with smtp (Exim 3.13 #3) id 13QlVx-00055j-00 for dvd-discuss@eon.law.harvard.edu; Mon, 21 Aug 2000 02:56:58 -0400 From: Ron Gustavson To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] introduction Date: Mon, 21 Aug 2000 02:50:34 -0400 Message-ID: <2og1qsk2d0mpj3euaaecffvldmi6vnerld@4ax.com> References: <20000818210635.A28207@lemuria.org> <00081906523901.27287@frankenstein.lumbercartel.com> <20000819155255.A19478@ramtop.demon.co.uk> <00081908131600.27457@frankenstein.lumbercartel.com> <20000820102533.A21852@ramtop.demon.co.uk> <14751.57113.532946.269002@patris.bel-kwinith.org> <20000820172047.A23428@ramtop.demon.co.uk> <14751.65304.811214.879001@patris.bel-kwinith.org> <200008210219.WAA04451@soggy-fibers.ai.mit.edu> In-Reply-To: <200008210219.WAA04451@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 CAA11798 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sun, 20 Aug 2000 22:19:03 -0400 (EDT), rst wrote: >Ummm... I'm not sure I see the point. Certainly, the movie studios >won't go for any such scheme for numerous reasons, beginning with user >convenience. While they may not go for it, perhaps the next FTC might induce them, if it can be shown that so-called CSS protection is responsible for a good chunk of our trade deficit [and sure to be a much greater percentage tomorrow than it is today.] This is the unfunny irony in Kaplan's "grave injury"-- that the real pirates profit so handily, as the studios throw up their hands in resignation, while a technological solution might a lot be closer and cheaper than the end of this case. Meanwhile the alleged DiVX traders serve only to build their audience for them. I know of no one who will settle for a DiVX version of a feature film instead of the actual product--whether DVD, in a theater, or broadcast. >I can think of one way for examples of alternative access control >schemes to be helpful --- if you have an alternative interpretation of >the access control provisions of the DMCA which is preferable in some >respect, you can use examples of access control schemes that fit your >model to demonstrate that your interpretation is compatible with >Congressional intent, and does leave the studios with meaningful >statutory protection for their work. I'd really like to see DVD rebuilt the way it should have been-- no Macrovision, no region codes, but some control over unauthorized access. [Although just a demonstration might also suffice.] >That's how I used the example access controls in my authority paper, >for example --- but existing, deployed systems were sufficient to make >the point, and they also don't let the studios claim that your scheme >was made up for the sake of the argument, and (for some specious >reason) wouldn't work in the real world. An important improvement over Divx would be the lack of a central Big Brother clearinghouse (ie. the key script could probably run from any Web server.) Unlike Broadbridge Media's steganography, the client would operate independent of a network connection. (Other than that, these two serve as good examples.) Programming the initial menu would probably involve becoming a CSS licensee even though there is no interest in using CSS--just details on the DVD-Video application layer. This is part of the monopoly problem: they've licensed the whole format against competition and against students learning how to "speak DVD." __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 21 03:25:54 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id DAA12031 for dvd-discuss-outgoing; Mon, 21 Aug 2000 03:25:54 -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 DAA12028 for ; Mon, 21 Aug 2000 03:25:52 -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 JAA23342 for ; Mon, 21 Aug 2000 09:21:16 +0200 Message-ID: <39A0D969.34BCC2C4@trustix.com> Date: Mon, 21 Aug 2000 09:25:29 +0200 From: Lars Gaarden Organization: Trustix AS X-Mailer: Mozilla 4.75 [en] (X11; U; Linux 2.4.0-t6p6imE2 i686) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] code as speech References: <20000821053930.8519.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 was talking about the XingDVD player program clickwrap licence, which > purportedly binds the user not to reverse engineer the technology. > Johansen allegedly ignored this (but there's no proof he accepted the > clickwrap contract). Even though CA law expressly states that reverse > engineering a trade secret is not misappropriation, the DVD-CCA line is > that the clickwrap contract agreement not to reverse engineer overrides > this. I thought this had already been covered. RE for the purpose of interoperability is allowed both in Germany and Norway. You do _not_ lose this right even if you sign a contract or click an EULA that states otherwise. -- 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 Aug 21 06:56:55 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id GAA13268 for dvd-discuss-outgoing; Mon, 21 Aug 2000 06:56:55 -0400 Received: from mail.lemuria.org (lemuria.borgfelde.ricardo.de [195.244.103.65]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id GAA13265 for ; Mon, 21 Aug 2000 06:56:53 -0400 Received: from lemuria.org by mail.lemuria.org via rsmtp with bsmtp id for ; Mon, 21 Aug 2000 12:45:57 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Received: by lemuria.org via sendmail with stdio id for dvd-discuss@eon.law.harvard.edu; Mon, 21 Aug 2000 12:37:45 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Date: Mon, 21 Aug 2000 12:37:45 +0200 From: Tom Vogt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] code as speech Message-ID: <20000821123745.A20776@lemuria.org> References: <4.3.2.7.2.20000820192703.04de19d0@127.0.0.1> <39A0A1A3.66B5325A@mit.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0pre3i In-Reply-To: <39A0A1A3.66B5325A@mit.edu> X-Privacy: If you can, please encrypt your mails - finger for key Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Ravi Nanavati wrote: > measure. The argument would be that selling T-shirts with code on them > (and with them), rather than just T-shirts with "Stop the MPAA" or the > DVD CCA crossed out, etc. is of limited commercial significance and > was designed to disseminate the code. I don't think its a winning argument, > and I think I think its dumb strategy (you boil the frog slowly, you > don't fry him), but then: I strongly believe it's the worst argument they can made. in private e-mail from copyleft people I heard comments along the lines of "we have trouble getting enough prints shirted" and "we've never received so many hits to our webpage before". obviously, these shirts are copyleft's greatest COMMERCIAL success so far. granting them "limited commercial significance" can only seriously come to the mind of some movie tycoon totally lost in his billions of profit. for the small company that copyleft is, these shirts are of great commercial significance. > 1) I never dreamed the DVD CCA would add Copyleft in the California > case. Does the EFF have some PR moles in there? Those T-shirts are > now flying out of the warehouse and the EFF gets $4 for each one > sold. they did it after someone in the NY case made it very clear that you'd have to either ban all incarnations of decss or none. seems the dvd cca dug that argument and swallowed the pill. I believe it was not a dumb move. how would they have explained to NOT have included copyleft? after all, their sending you a paper copy of decss is not significantly different from me offering an FTP download of the same code. and after copyleft was made popular in NY, nobody would've believed them that they didn't know the guys. I guess they simply had no choice. -- "The net treats censorship as a malfunction and re-routes around it." (John Gilmore) From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 21 07:06:47 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id HAA13403 for dvd-discuss-outgoing; Mon, 21 Aug 2000 07:06:47 -0400 Received: from mail.lemuria.org (lemuria.borgfelde.ricardo.de [195.244.103.65]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id HAA13400 for ; Mon, 21 Aug 2000 07:06:46 -0400 Received: from lemuria.org by mail.lemuria.org via rsmtp with bsmtp id for ; Mon, 21 Aug 2000 13:04:01 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Received: by lemuria.org via sendmail with stdio id for dvd-discuss@eon.law.harvard.edu; Mon, 21 Aug 2000 12:49:14 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Date: Mon, 21 Aug 2000 12:49:14 +0200 From: Tom Vogt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] code as speech Message-ID: <20000821124914.A20915@lemuria.org> References: <20000821053930.8519.qmail@web509.mail.yahoo.com> <00082118105706.01179@leopard.lan> Mime-Version: 1.0 Content-Type: multipart/signed; micalg=pgp-md5; protocol="application/pgp-signature"; boundary="HcAYCG3uE/tztfnV" X-Mailer: Mutt 1.0pre3i In-Reply-To: <00082118105706.01179@leopard.lan> X-Privacy: If you can, please encrypt your mails - finger for key Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --HcAYCG3uE/tztfnV Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: quoted-printable Daniel Richards wrote: > FIrst of all, isn't REing LEGAL in Norway? I've heard that over there it'= s a > right that can't be uspered by any kind of "shrink-wrap" "contracts". the reference is on my webpage. I think it's on the http://www.lemuria.org/DeCSS/decss.html page. norwegian original and english translation. > (Doesn't buying the DVD legally mean you have "authorisation"? But that's= an > entirely different can of ones and zero's) aside from all the legal mumbo-jumbo, that's all I care about. I payed for every single DVD I own, so I believe that I can do pretty much whatever I want with them. (as long as "with them" includes just them, not additional copies, etc) --=20 "The net treats censorship as a malfunction and re-routes around it." (John Gilmore) --HcAYCG3uE/tztfnV Content-Type: application/pgp-signature -----BEGIN PGP SIGNATURE----- Version: GnuPG v1.0.0 (GNU/Linux) Comment: For info see http://www.gnupg.org iD8DBQE5oQkpSd75SPXqTkERAaWBAJ0ZnsLxbWBTdKuBhytc/Xd+kVNm4gCfUsnF LTCHCgEd1WO5YcM0gKe1uCM= =xNgY -----END PGP SIGNATURE----- --HcAYCG3uE/tztfnV-- From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 21 07:21:38 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id HAA13585 for dvd-discuss-outgoing; Mon, 21 Aug 2000 07:21:38 -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 HAA13582 for ; Mon, 21 Aug 2000 07:21:37 -0400 Received: from mediaone.net (h0060b03c5b8b.ne.mediaone.net [24.128.18.77]) by chmls05.mediaone.net (8.8.7/8.8.7) with ESMTP id HAA17740 for ; Mon, 21 Aug 2000 07:21:41 -0400 (EDT) Message-ID: <39A110C6.593AFA8B@mediaone.net> Date: Mon, 21 Aug 2000 07:21:42 -0400 From: Sphere X-Mailer: Mozilla 4.73 [en] (WinNT; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] code as speech References: <4.3.2.7.2.20000820192703.04de19d0@127.0.0.1> <39A0A1A3.66B5325A@mit.edu> <20000821123745.A20776@lemuria.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 Tom Vogt wrote: > > Ravi Nanavati wrote: ... > > 1) I never dreamed the DVD CCA would add Copyleft in the California > > case. Does the EFF have some PR moles in there? Those T-shirts are > > now flying out of the warehouse and the EFF gets $4 for each one > > sold. > > they did it after someone in the NY case made it very clear that you'd have > to either ban all incarnations of decss or none. seems the dvd cca dug that > argument and swallowed the pill. > I believe it was not a dumb move. how would they have explained to NOT have > included copyleft? after all, their sending you a paper copy of decss is > not significantly different from me offering an FTP download of the same > code. and after copyleft was made popular in NY, nobody would've believed > them that they didn't know the guys. > I guess they simply had no choice. > > -- > "The net treats censorship as a malfunction and re-routes around it." > (John Gilmore) We need to find some more "no choices" for them to make. Maybe Copyleft can fit the entire listing on a coffee mug. What other commercial enterprises do we have in our camp who could find a way to profit off the DeCSS source? At this point it would be very hard to paint someone newly in the game as stealing a secret. Preying off notoriety would be closer to the truth. -- Sphere. Is DeCSS.c obscene? Why can't I read it? Can knowledge be forbidden? From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 21 07:27:46 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id HAA13691 for dvd-discuss-outgoing; Mon, 21 Aug 2000 07:27:46 -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 HAA13688 for ; Mon, 21 Aug 2000 07:27:39 -0400 Received: from sites.inka.de (puric.inka.de [212.227.14.17]) by mail.inka.de with esmtp id 13Qpjz-0007Y9-00; Mon, 21 Aug 2000 13:27:43 +0200 Received: from localhost by sites.inka.de with local id 13Qpk1-0003b0-00; Mon, 21 Aug 2000 13:27:45 +0200 Date: Mon, 21 Aug 2000 13:27:45 +0200 From: Sham Gardner To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] URLs to links CGI Message-ID: <20000821132745.A12121@inka.de> References: <20000821053930.8519.qmail@web509.mail.yahoo.com> <00082118105706.01179@leopard.lan> <20000821124914.A20915@lemuria.org> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0i In-Reply-To: <20000821124914.A20915@lemuria.org>; from tom@lemuria.org on Mon, Aug 21, 2000 at 12:49:14PM +0200 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu At the moment it's extremely crude, but I've written a little cgi that takes a page containing textual URLs and outputs them as links. It's a rather nasty hack that invokes lynx to convert the page to raw text, but for the moment it does the job. Sham Oh the URL is http://sites.inka.de/risctaker/cgi-bin/2600proxy.cgi?http://www.2600.com/news/1999/1227-help.html 2600's page can of course be replaced by any other. -- http://sites.inka.de/risctaker/DeCSS/ "The first speech censored, the first thought forbidden, the first freedom denied, chains us all irrevocably." (Jean-Luc Picard) From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 21 07:59:59 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id HAA13791 for dvd-discuss-outgoing; Mon, 21 Aug 2000 07:59:59 -0400 Received: from odin.funcom.com (odin.funcom.com [193.71.100.3]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id HAA13788 for ; Mon, 21 Aug 2000 07:59:57 -0400 Received: from odin ([193.71.100.3]) by odin.funcom.com with smtp (Exim 2.12 #1) id 13QqFE-0004Qa-00 for dvd-discuss@eon.law.harvard.edu; Mon, 21 Aug 2000 14:00:00 +0200 Date: Mon, 21 Aug 2000 14:00:00 +0200 (CEST) From: Frank Andrew Stevenson X-Sender: frank@odin To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] code as speech In-Reply-To: <39A110C6.593AFA8B@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 Mon, 21 Aug 2000, Sphere wrote: > We need to find some more "no choices" for > them to make. Maybe Copyleft can fit the > entire listing on a coffee mug. That shouldn't pose much of a problem, this source snippet will be legible on a business card ( using 3pt. legal eystrain font ). BTW this is a condensed version of exihibit B ( Hoy declaration, entered into the public record in CA by the DVD CCA ) frank #include typedef unsigned int uint; char ctb[512]="33733b2663236b763e7e362b6e2e667bd393db0643034b96de9ed60b4e0e4\ 69b57175f82c787cf125a1a528fca8ac21fd999d10049094190d898d001480840913d7d35246\ d2d65743c7c34256c2c6475dd9dd5044d0d4594dc9cd4054c0c449559195180c989c11058185\ 081c888c011d797df0247074f92da9ad20f4a0a429f53135b86c383cb165e1e568bce8ec61bb\ 3f3bba6e3a3ebf6befeb6abeeaee6fb37773f2267276f723a7a322f6a2a627fb9f9b1a0e9a9e\ 1f0b8f8b0a1e8a8e0f15d1d5584cd8dc5145c1c5485cc8cc415bdfdb5a4edade5f4bcfcb4a5e\ cace4f539793120692961703878302168286071b7f7bfa2e7a7eff2bafab2afeaaae2ff"; typedef unsigned char uchar;uint tb0[11]={5,0,1,2,3,4,0,1,2,3,4};uchar* F=NULL; uint lf0,lf1,out;void ReadKey(uchar* key){int i;char hst[3]; hst[2]=0;if(F==\ NULL){F=malloc(256);for(i=0;i<256;i++){hst[0]=ctb[2*i];hst[1]=ctb[2*i+1];F[i]=\ strtol(hst,NULL,16);}}out=0;lf0=(key[1]<<9)|key[0]|0x100;lf1=(key[4]<<16)|(key\ [3]<<8)|key[2];lf1=((lf1&0xfffff8)<<1)|(lf1&0x7)|0x8;}uchar Cipher(int sw1,\ int sw2){int i,a,b,x=0,y=0;for(i=0;i<8;i++){a=((lf0>>2)^(lf0>>16))&1;b=((lf1\ >>12)^(lf1>>20)^(lf1>>21)^(lf1>>24))&1;lf0=(lf0<<1)|a;lf1=(lf1<<1)|b;x=(x>>1)\ |(a<<7);y=(y>>1)|(b<<7);}x^=sw1;y^=sw2;return out=(out>>8)+x+y;} void \ CSSdescramble(uchar *sec,uchar *key){uint i;uchar *end=sec+0x800;uchar KEY[5]; for(i=0;i<5;i++)KEY[i]=key[i]^sec[0x54+i];ReadKey(KEY);sec+=0x80;while(sec!=\ end)*sec++=F[*sec]^Cipher(255,0);}void CSStitlekey1(uchar *key,uchar *im) {uchar k[5];int i; ReadKey(im);for(i=0;i<5;i++)k[i]=Cipher(0,0);for(i=9;i>=0;\ i--)key[tb0[i+1]]=k[tb0[i+1]]^F[key[tb0[i+1]]]^key[tb0[i]];}void CSStitlekey2\ (uchar *key,uchar *im){uchar k[5];int i;ReadKey(im);for(i=0;i<5;i++)k[i]=\ Cipher(0,255);for(i=9;i>=0;i--)key[tb0[i+1]]=k[tb0[i+1]]^F[key[tb0[i+1]]]^key\ [tb0[i]];}void CSSdecrypttitlekey(uchar *tkey,uchar *dkey){int i;uchar im1[6]; uchar im2[6]={0x51,0x67,0x67,0xc5,0xe0,0x00};for(i=0;i<6;i++)im1[i]=dkey[i]; CSStitlekey1(im1,im2);CSStitlekey2(tkey,im1);} This sentence is unique in this respect; it can safely be attributed to my employer, Funcom Oslo AS. There is no place like N59 50.558' E010 50.870'. (WGS84) I enjoy coffee, and support cafe: http://www.eff.org/cafe/ From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 21 08:19:23 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id IAA14111 for dvd-discuss-outgoing; Mon, 21 Aug 2000 08:19:23 -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 IAA14108 for ; Mon, 21 Aug 2000 08:19:23 -0400 Received: from mediaone.net (h0060b03c5b8b.ne.mediaone.net [24.128.18.77]) by chmls05.mediaone.net (8.8.7/8.8.7) with ESMTP id IAA10770 for ; Mon, 21 Aug 2000 08:19:27 -0400 (EDT) Message-ID: <39A11E4F.4A4DB9E5@mediaone.net> Date: Mon, 21 Aug 2000 08:19:27 -0400 From: Sphere X-Mailer: Mozilla 4.73 [en] (WinNT; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] code as speech 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 Frank Andrew Stevenson wrote: > > On Mon, 21 Aug 2000, Sphere wrote: > > We need to find some more "no choices" for > > them to make. Maybe Copyleft can fit the > > entire listing on a coffee mug. > > That shouldn't pose much of a problem, this source snippet will be > legible on a business card ( using 3pt. legal eystrain font ). BTW this is > a condensed version of exihibit B ( Hoy declaration, entered into the > public record in CA by the DVD CCA ) > > frank > > #include > typedef unsigned int uint; > char ctb[512]="33733b2663236b763e7e362b6e2e667bd393db0643034b96de9ed60b4e0e4\ > 69b57175f82c787cf125a1a528fca8ac21fd999d10049094190d898d001480840913d7d35246\ > d2d65743c7c34256c2c6475dd9dd5044d0d4594dc9cd4054c0c449559195180c989c11058185\ > 081c888c011d797df0247074f92da9ad20f4a0a429f53135b86c383cb165e1e568bce8ec61bb\ > 3f3bba6e3a3ebf6befeb6abeeaee6fb37773f2267276f723a7a322f6a2a627fb9f9b1a0e9a9e\ > 1f0b8f8b0a1e8a8e0f15d1d5584cd8dc5145c1c5485cc8cc415bdfdb5a4edade5f4bcfcb4a5e\ > cace4f539793120692961703878302168286071b7f7bfa2e7a7eff2bafab2afeaaae2ff"; > typedef unsigned char uchar;uint tb0[11]={5,0,1,2,3,4,0,1,2,3,4};uchar* F=NULL; > uint lf0,lf1,out;void ReadKey(uchar* key){int i;char hst[3]; hst[2]=0;if(F==\ > NULL){F=malloc(256);for(i=0;i<256;i++){hst[0]=ctb[2*i];hst[1]=ctb[2*i+1];F[i]=\ > strtol(hst,NULL,16);}}out=0;lf0=(key[1]<<9)|key[0]|0x100;lf1=(key[4]<<16)|(key\ > [3]<<8)|key[2];lf1=((lf1&0xfffff8)<<1)|(lf1&0x7)|0x8;}uchar Cipher(int sw1,\ > int sw2){int i,a,b,x=0,y=0;for(i=0;i<8;i++){a=((lf0>>2)^(lf0>>16))&1;b=((lf1\ > >>12)^(lf1>>20)^(lf1>>21)^(lf1>>24))&1;lf0=(lf0<<1)|a;lf1=(lf1<<1)|b;x=(x>>1)\ > |(a<<7);y=(y>>1)|(b<<7);}x^=sw1;y^=sw2;return out=(out>>8)+x+y;} void \ > CSSdescramble(uchar *sec,uchar *key){uint i;uchar *end=sec+0x800;uchar KEY[5]; > for(i=0;i<5;i++)KEY[i]=key[i]^sec[0x54+i];ReadKey(KEY);sec+=0x80;while(sec!=\ > end)*sec++=F[*sec]^Cipher(255,0);}void CSStitlekey1(uchar *key,uchar *im) > {uchar k[5];int i; ReadKey(im);for(i=0;i<5;i++)k[i]=Cipher(0,0);for(i=9;i>=0;\ > i--)key[tb0[i+1]]=k[tb0[i+1]]^F[key[tb0[i+1]]]^key[tb0[i]];}void CSStitlekey2\ > (uchar *key,uchar *im){uchar k[5];int i;ReadKey(im);for(i=0;i<5;i++)k[i]=\ > Cipher(0,255);for(i=9;i>=0;i--)key[tb0[i+1]]=k[tb0[i+1]]^F[key[tb0[i+1]]]^key\ > [tb0[i]];}void CSSdecrypttitlekey(uchar *tkey,uchar *dkey){int i;uchar im1[6]; > uchar im2[6]={0x51,0x67,0x67,0xc5,0xe0,0x00};for(i=0;i<6;i++)im1[i]=dkey[i]; > CSStitlekey1(im1,im2);CSStitlekey2(tkey,im1);} > Hmmm... Kind of large for a .sig, but I've seen some out there that weren't any smaller. -- Sphere. Is DeCSS.c obscene? Why can't I read it? Can knowledge be forbidden? From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 21 09:08:46 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA14522 for dvd-discuss-outgoing; Mon, 21 Aug 2000 09:08:46 -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 JAA14519 for ; Mon, 21 Aug 2000 09:08:46 -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 JAA14605 for ; Mon, 21 Aug 2000 09:08:50 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id JAA05462; Mon, 21 Aug 2000 09:08:50 -0400 (EDT) Date: Mon, 21 Aug 2000 09:08:50 -0400 (EDT) Message-Id: <200008211308.JAA05462@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] introduction In-Reply-To: <20000820233119.B727@localhost> References: <20000818210635.A28207@lemuria.org> <14749.64358.263678.23652@patris.bel-kwinith.org> <399E0B67.3739B344@mediaone.net> <00081906523901.27287@frankenstein.lumbercartel.com> <20000820233119.B727@localhost> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Paul Fenimore writes: > In other words --- DeCSS has no legal problems except for > anti-circumvention. And heroin has no legal problems outside its presence on the FDA's lists of controlled substances. I think you missed the point of the analogy. rst From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 21 09:23:46 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA15262 for dvd-discuss-outgoing; Mon, 21 Aug 2000 09:23:46 -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 JAA15259 for ; Mon, 21 Aug 2000 09:23:45 -0400 Received: from mediaone.net (h0060b03c5b8b.ne.mediaone.net [24.128.18.77]) by chmls06.mediaone.net (8.8.7/8.8.7) with ESMTP id JAA15355 for ; Mon, 21 Aug 2000 09:23:49 -0400 (EDT) Message-ID: <39A12D65.5DB04655@mediaone.net> Date: Mon, 21 Aug 2000 09:23:49 -0400 From: Sphere X-Mailer: Mozilla 4.73 [en] (WinNT; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] introduction References: <20000818210635.A28207@lemuria.org> <14749.64358.263678.23652@patris.bel-kwinith.org> <399E0B67.3739B344@mediaone.net> <00081906523901.27287@frankenstein.lumbercartel.com> <20000820233119.B727@localhost> <200008211308.JAA05462@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: > > Paul Fenimore writes: > > In other words --- DeCSS has no legal problems except for > > anti-circumvention. > > And heroin has no legal problems outside its presence on the FDA's > lists of controlled substances. > > I think you missed the point of the analogy. > > rst The question is, can the analogy be made to stick? Our mission is to make the answer NO. I think the main problem with your analogy is that heroin has been made illegal based upon a (presumed) direct interest of the government's. DeCSS has been made illegal based upon a particular commercial interest. The government has no valid interest in a specific commercial enterprise, and certainly not an overriding interest in that enterprise. -- Sphere. Is DeCSS.c obscene? Why can't I read it? Can knowledge be forbidden? From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 21 09:35:15 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA15389 for dvd-discuss-outgoing; Mon, 21 Aug 2000 09:35:15 -0400 Received: from smtp05.primenet.com (smtp05.primenet.com [206.165.6.135]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id JAA15386 for ; Mon, 21 Aug 2000 09:35:14 -0400 Received: (from daemon@localhost) by smtp05.primenet.com (8.9.3/8.9.3) id GAA05362 for ; Mon, 21 Aug 2000 06:35:24 -0700 (MST) Received: from sessions.phx.primenet.com(206.132.239.114), claiming to be "heorot.lumbercartel.com" via SMTP by smtp05.primenet.com, id smtpdAAAyCa4sk; Mon Aug 21 06:35:14 2000 Received: from frankenstein.lumbercartel.com (IDENT:dcs@frankenstein.lumbercartel.com [192.168.6.2]) by heorot.lumbercartel.com (8.9.3/8.8.7) with SMTP id GAA19955 for ; Mon, 21 Aug 2000 06:34:32 -0700 From: "D. C. Sessions" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] introduction Date: Mon, 21 Aug 2000 06:30:41 -0700 X-Mailer: KMail [version 1.0.29] Content-Type: text/plain References: <20000818210635.A28207@lemuria.org> <00081906523901.27287@frankenstein.lumbercartel.com> <20000820233119.B727@localhost> In-Reply-To: <20000820233119.B727@localhost> MIME-Version: 1.0 Message-Id: <00082106342601.09104@frankenstein.lumbercartel.com> Content-Transfer-Encoding: 8bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sun, 20 Aug 2000, Paul Fenimore wrote: > On Sat, Aug 19, 2000 at 06:50:04AM -0700, D. C. Sessions wrote: > > On Fri, 18 Aug 2000, Sphere wrote: > > > > > Don't provide LiVid. Just the disk. I can't > > > watch the disk without LiViD. My Constitutional > > > right to See/hear/read speech has been infringed. > > > I want LiVid so I can know what is being said. > > > > > > Go after the right to hear free speech, not > > > the right to produce it. Just provide the > > > speech in a manner I cannot receive under > > > the law and the law is itself a prior > > > restraint of speech. > > > > [DA] The author shouldn't have required an illegal instrument for > > access to the content then. Publishing a book in an invisible ink > > which requires a heroin solution to become readable doesn't bring > > heroin under the First Amendment. > > Heroin is a controlled substance. Use of heroin as a circumventing > treatment does not make an analogy with DeCSS because the > same heroin solution used with authorization to gain access would > still be illegal because of its pharmacological properties. > > In other words --- DeCSS has no legal problems except for > anti-circumvention. Heroin has legal problems outside copyright. The Plaintiffs' position is that DeCSS (or LiViD) is illegal irrespective of any one copyright holder's permission to use it because it is, in itself, a prohibited item of trade -- like heroin. I deliberately chose a Class III substance because it's another case of something that correct permission (i.e. a prescription) won't authorize. We need to attack the position that DeCSS/LiViD are inherently illegal, and contrived workarounds based on one copyright holder overthrowing the economics of the movie industry are not going to be persuasive. -- | Microsoft: "A reputation for releasing inferior software will make | | it more difficult for a software vendor to induce customers to pay | | for new products or new versions of existing products." | +----------- D. C. & M. V. Sessions ----------+ From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 21 09:53:23 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA15497 for dvd-discuss-outgoing; Mon, 21 Aug 2000 09:53:23 -0400 Received: from smtp04.primenet.com (smtp04.primenet.com [206.165.6.134]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id JAA15494 for ; Mon, 21 Aug 2000 09:53:20 -0400 Received: (from daemon@localhost) by smtp04.primenet.com (8.9.3/8.9.3) id GAA03430 for ; Mon, 21 Aug 2000 06:51:34 -0700 (MST) Received: from sessions.phx.primenet.com(206.132.239.114), claiming to be "heorot.lumbercartel.com" via SMTP by smtp04.primenet.com, id smtpdAAAyXaOQg; Mon Aug 21 06:51:30 2000 Received: from frankenstein.lumbercartel.com (IDENT:dcs@frankenstein.lumbercartel.com [192.168.6.2]) by heorot.lumbercartel.com (8.9.3/8.8.7) with SMTP id GAA20036 for ; Mon, 21 Aug 2000 06:53:17 -0700 From: "D. C. Sessions" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] introduction Date: Mon, 21 Aug 2000 06:50:14 -0700 X-Mailer: KMail [version 1.0.29] Content-Type: text/plain References: <20000818210635.A28207@lemuria.org> <200008211308.JAA05462@soggy-fibers.ai.mit.edu> <39A12D65.5DB04655@mediaone.net> In-Reply-To: <39A12D65.5DB04655@mediaone.net> MIME-Version: 1.0 Message-Id: <00082106525302.09104@frankenstein.lumbercartel.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, 21 Aug 2000, Sphere wrote: > "Robert S. Thau" wrote: > > Paul Fenimore writes: > > > In other words --- DeCSS has no legal problems except for > > > anti-circumvention. > > > > And heroin has no legal problems outside its presence on the FDA's > > lists of controlled substances. > > > > I think you missed the point of the analogy. > The question is, can the analogy be made to stick? > Our mission is to make the answer NO. > > I think the main problem with your analogy is that > heroin has been made illegal based upon a (presumed) > direct interest of the government's. DeCSS has been > made illegal based upon a particular commercial > interest. The government has no valid interest in > a specific commercial enterprise, and certainly > not an overriding interest in that enterprise. That fits the analogy quite well, though. The point of it is that a contrived situation engineered to bring the First Amendment in can't be used wherever you want to make something legal, be it chemical or technological. The purported illegality of DeCSS/LiViD is bogus independent of any one author's wishes. -- | Microsoft: "A reputation for releasing inferior software will make | | it more difficult for a software vendor to induce customers to pay | | for new products or new versions of existing products." | +----------- D. C. & M. V. Sessions ----------+ From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 21 10:07:59 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA15649 for dvd-discuss-outgoing; Mon, 21 Aug 2000 10:07:59 -0400 Received: from localhost.localdomain (mail4.registeredsite.com [209.35.159.16]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id KAA15646 for ; Mon, 21 Aug 2000 10:07:58 -0400 Received: from mail.nearside.com (mail.nearside.com [216.25.52.95]) by localhost.localdomain (8.9.3/8.9.3) with ESMTP id JAA19746 for ; Mon, 21 Aug 2000 09:03:44 -0400 Received: from [24.14.203.65] [24.14.203.65] by mail.nearside.com with ESMTP (SMTPD32-6.00) id A7BCC473011C; Mon, 21 Aug 2000 10:07:56 -0400 User-Agent: Microsoft Outlook Express Macintosh Edition - 5.01 (1630) Date: Mon, 21 Aug 2000 10:07:58 -0400 Subject: Re: [dvd-discuss] code as speech From: Jed Borod To: Message-ID: In-Reply-To: <39A110C6.593AFA8B@mediaone.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 8/21/00 7:21 AM, Sphere wrote: > We need to find some more "no choices" for > them to make. Maybe Copyleft can fit the > entire listing on a coffee mug. > > What other commercial enterprises do we > have in our camp who could find a way to > profit off the DeCSS source? At this > point it would be very hard to paint > someone newly in the game as stealing > a secret. Preying off notoriety would > be closer to the truth. I would love to see people distribute mp3s of someone reading the DeCSS source code. Coffee mugs are good, maybe a book too. The MPAA will have to become progressively more ridiculous in order to stop *all* distribution of the code. -- Jed Borod From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 21 10:46:22 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA16217 for dvd-discuss-outgoing; Mon, 21 Aug 2000 10:46:22 -0400 Received: from odin.funcom.com (odin.funcom.com [193.71.100.3]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id KAA16214 for ; Mon, 21 Aug 2000 10:46:20 -0400 Received: from odin ([193.71.100.3]) by odin.funcom.com with smtp (Exim 2.12 #1) id 13QsqF-0006xw-00 for dvd-discuss@eon.law.harvard.edu; Mon, 21 Aug 2000 16:46:23 +0200 Date: Mon, 21 Aug 2000 16:46:23 +0200 (CEST) From: Frank Andrew Stevenson X-Sender: frank@odin To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] code as speech 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 What about making custom printet checks, featuring a short version of exhibit B. Can you legaly make payments with such checks under Kaplans ruling ? frank On Mon, 21 Aug 2000, Jed Borod wrote: > on 8/21/00 7:21 AM, Sphere wrote: > > > We need to find some more "no choices" for > > them to make. Maybe Copyleft can fit the > > entire listing on a coffee mug. > > I would love to see people distribute mp3s of someone reading the DeCSS > source code. Coffee mugs are good, maybe a book too. The MPAA will have to > become progressively more ridiculous in order to stop *all* distribution of > the code. This sentence is unique in this respect; it can safely be attributed to my employer, Funcom Oslo AS. There is no place like N59 50.558' E010 50.870'. (WGS84) I enjoy coffee, and support cafe: http://www.eff.org/cafe/ From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 21 10:46:51 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA16226 for dvd-discuss-outgoing; Mon, 21 Aug 2000 10:46:51 -0400 Received: from mail.lemuria.org (lemuria.borgfelde.ricardo.de [195.244.103.65]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id KAA16222 for ; Mon, 21 Aug 2000 10:46:48 -0400 Received: from lemuria.org by mail.lemuria.org via rsmtp with bsmtp id for ; Mon, 21 Aug 2000 16:37:14 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Received: by lemuria.org via sendmail with stdio id for dvd-discuss@eon.law.harvard.edu; Mon, 21 Aug 2000 15:22:41 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Date: Mon, 21 Aug 2000 15:22:41 +0200 From: Tom Vogt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] code as speech Message-ID: <20000821152241.A21332@lemuria.org> References: <4.3.2.7.2.20000820192703.04de19d0@127.0.0.1> <39A0A1A3.66B5325A@mit.edu> <20000821123745.A20776@lemuria.org> <39A110C6.593AFA8B@mediaone.net> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0pre3i In-Reply-To: <39A110C6.593AFA8B@mediaone.net> X-Privacy: If you can, please encrypt your mails - finger for key Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Sphere wrote: > What other commercial enterprises do we > have in our camp who could find a way to > profit off the DeCSS source? At this > point it would be very hard to paint > someone newly in the game as stealing > a secret. Preying off notoriety would > be closer to the truth. I have a non-commercial thing coming up - an art contest. -- "The net treats censorship as a malfunction and re-routes around it." (John Gilmore) From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 21 12:17:53 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA17248 for dvd-discuss-outgoing; Mon, 21 Aug 2000 12:17:53 -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 MAA17245 for ; Mon, 21 Aug 2000 12:17:51 -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 MAA32500; Mon, 21 Aug 2000 12:17:27 -0400 Message-Id: <200008211617.MAA32500@samsara.law.cwru.edu> To: dvd-discuss@eon.law.harvard.edu cc: junger@samsara.law.cwru.edu, junger@samsara.law.cwru.edu Subject: Re: [dvd-discuss] code as speech In-reply-to: Your message of "Sun, 20 Aug 2000 20:02:34 PDT." <4.3.2.7.2.20000820192703.04de19d0@127.0.0.1> Date: Mon, 21 Aug 2000 12:16:57 -0400 From: "Peter D. Junger" Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu "James S. Tyre" writes: : At 01:15 PM 8/20/2000 -0400, Peter D. Junger wrote: : >"James S. Tyre" writes: : > : > : >: : >: : >: OK, but you need to throw another factor into the mix here: DMCA does not : >: purport to regulate t-shirts. : > : >It purports to limit the distribution of technology. It doesn't distinguish : >between t-shirts and floppy disks and making it available on a server : >on the Internet. Or at least that is the way I read it at a superficial : >level, though I actually think that a careful reading of 17 U.S.C. : >1201(a)(2) suggests that the limitation applies to devices, like computers, : >rather than texts like computer code. (The careful reading avoids a : >lot of constitutional issues.) : : Peter, it's not normal for me to disagree with you, but what the heck. ;-) I'm not sure that there is a disagreement. : : I don't think you can limit 1201(a)(2) to devices, if all we're talking : about here is pure statutory construction. It provides: : : "(2) No person shall manufacture, import, offer to the public, : provide, or otherwise traffic in any technology, product, service, : device, component, or part thereof, that ...." I think one can limit it to devices in exactly the same way that you limit it to non-t-shirts. But I was sloppy in the way I phrased my point since I am not denying that services are covered, or components or products. : Technology, product, service, component must have some meaning other than : device. Certainly, "service" must even if the other terms potentially are : redundant. Right. And the t-shirt with the code printed on it is exactly like a book or a floppy disk or a hard disk on a web server with the code printed on it. It can't be a device or service or product or part that circumvents. (It is a category error to say that software is a part or the book or the device that circumvents, but rather that is is the text of the software---the code---that circumvents. But the only forbidden ``thing'' that could encompass code is ``technology,'' and I admit that ``technology'' may sometimes be used in regulations to avoid raising constitutional questions that would be raised if the regulations were to be read as restraining the publication of software. But, I submit, a court should try to avoid those constitutional questions, and therefore should conclude that ``technology'' does not include ``code.'' : But as to whether 1201(a)(2) distinguishes between t-shirts and floppies, : at least implicitly it does. The technology, product, service, device, : component, or part thereof is a no-no only if it: : : "(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; : (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 : (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." Right. And if a device is a general purpose computer that runs DeCSS, that device does not fall within any of the cases that make it a no-no. So software is not one of the potentially forbidden things and a general purpose computer, although it clearly is a device, is still not a no-no for the same reasons that a t-shirt isn't a no-no. : Without re-opening the question of what circumvention is, and whether DeCSS : does circumvent, it would be incredulous, even for the MPAA, to assert that : a t-shirt with the code is "primarily designed or produced" to : circumvent. Being slightly sarcastic here (not at you, just at the whole : idea), what are you going to do, wipe the t-shirt across the disc and : magically erase CSS? T-shirts are primarily designed to cover one's upper : body, and sometimes, to make statements, banal, humorous or serious, but : that's about it. To ``make statements'' raises the specter of _O'Brien_: wearing the t-shirt as an expressive act. I would suggest that happier choice of language for our mutual argument would be that t-shirts are sometimes used to embody the text of statements, just as are books, handbills, and billboards. : As to (B) and (C), again, how can a t-shirt be used to circumvent? A : floppy loaded with the right source could (again, speaking generally, not : DeCSS-specific), but not a piece of clothing. So while 1201 (a)(2) says : nothing about clothing, it is hard to construe it in such a manner as to : ban a T. How can the floppy do anything? Perhaps the floppy can be considered a part of a general purpose computer, but then the computer is the device and it can be used for many things and it is not designed primarily as a circumvention device. But one could put the t-shirt into a scanner that is connected to a computer as an input device and---voila!---there is no longer any difference between the t-shirt and the floppy. (Is there a riddle lurking there?) : >: Yes, you're talking constitution, and the constitution always will trump a : >: statute, but, within limits, a judge is supposed to try to "read" a statut : e : >: in such a way as to make it constitutional. Consequently, if one removes : >: DMCA from the equation, one cannot necessarily assume that Kaplan's ruling : >: would be the same for a t-shirt. : > : >How can you leave the DMCA out and have any issue for a court to decide? : : General copyright law, or, as has become an issue in the California case, : trade secret law. Unfair competition, various other business torts come to : mind, depending on the facts. All are issues which may be addressed by a : court, but not Kaplan's court. It is only at this point that we perhaps disagree---or perhaps you disagree with yourself. If one leaves the DMCA out, Kaplan would not have anything to rule about. Certainly he could not rule that a t-shirt does, or does not, constitute a circumventing device as defined in the DMCA. I hope all this makes sense. I am living on soup and psuedofed so I am not to coherent. I am way behind in reading my e-mail and in everything else. (Since I have not read my latest mail I am still wondering if you are going to write one of your helpful essays on the well pleaded complaint rule and federal jurisdiction.) Servus, 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 Mon Aug 21 12:42:14 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA17613 for dvd-discuss-outgoing; Mon, 21 Aug 2000 12:42:14 -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 MAA17610 for ; Mon, 21 Aug 2000 12:42:13 -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 MAA32633; Mon, 21 Aug 2000 12:41:49 -0400 Message-Id: <200008211641.MAA32633@samsara.law.cwru.edu> To: dvd-discuss@eon.law.harvard.edu cc: junger@samsara.law.cwru.edu Subject: Re: [dvd-discuss] code as speech In-reply-to: Your message of "Mon, 21 Aug 2000 14:00:00 +0200." Date: Mon, 21 Aug 2000 12:41:19 -0400 From: "Peter D. Junger" Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Frank Andrew Stevenson writes: : On Mon, 21 Aug 2000, Sphere wrote: : > We need to find some more "no choices" for : > them to make. Maybe Copyleft can fit the : > entire listing on a coffee mug. : : That shouldn't pose much of a problem, this source snippet will be : legible on a business card ( using 3pt. legal eystrain font ). BTW this is : a condensed version of exihibit B ( Hoy declaration, entered into the : public record in CA by the DVD CCA ) : : frank Is that the CSS code? If it is, why doesn't your transmitting it to this list, which includes furriners, violate the Export Administration Regulations applicable to encryption software? (I am not saying that it does, but I am deleting the actual code just to be on the safe side.) -- 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 Mon Aug 21 13:00:01 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA17793 for dvd-discuss-outgoing; Mon, 21 Aug 2000 13:00:01 -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 MAA17790 for ; Mon, 21 Aug 2000 12:59:59 -0400 Message-ID: <20000821165929.21415.qmail@web512.mail.yahoo.com> Received: from [131.44.121.4] by web512.mail.yahoo.com; Mon, 21 Aug 2000 09:59:29 PDT Date: Mon, 21 Aug 2000 09:59:29 -0700 (PDT) From: Bryan Taylor Subject: [dvd-discuss] Clickwrap Contracts [was: code as speech] To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --- Daniel Richards wrote: > -----BEGIN PGP SIGNED MESSAGE----- > FIrst of all, isn't REing LEGAL in Norway? I've heard that over there > it's a right that can't be uspered by any kind of "shrink-wrap" > "contracts". Also, Jon was 15 at the time DeCSS was released, > arn't minors not allowed to agree to legal binding contracts > (then you get to the issue of are click-thru licenses legally.. > at least not here they arn't (NZ)). I believe that the clickwrap licence says two important things: that California law governs disputes arizing under it and that you can't reverse engineer the product. The question starts with contract analysis under multi-national jurisdiction: 1. When the offerer and offeree are in different coutnries, which law governs contract formation? Once jurisdiction is determined, contract foundation is the issue: 2. Is the foundation for a contract there: - valid offer (I call it 'attack by offer' when rejecting offer requires resources. Is the offer procedurally unconscionable) - valid acceptance (must you communicate/manifest your assent?) - valid parties (can minors form contracts?) - The relation to the contract of sale must be classified (does it modifiy it or create a second distinct contrac?) - valid consideration (what exactly is given up by Xing? Depends on the previous question) 3. If you conclude that there is mutual assent to create a binding contract, then you turn to its terms: - Does Norwegian law preempt the choice of California forum clause? - Does Norwegian law preempt the no reverse engineering clause? - If CA law applies does the US Federal copyright act preempt the no reverse engineering clause The DVD-CCA has to get a favorable decision on ALL of the above to BEGIN a CA state law claim for misappropriation via breach of contract. To win against the defendents they also need to show that each defendant should have known there was missappropriation, which requires that each should have known the answer to the above chain of questions. They must also get around the First Amendment vs. trade secret choke point. A while back I made an outline on all this: http://bioinformatics.ucsf.edu/bwtaylor/dvd/EFF_questions/Q6_clickwrap/ __________________________________________________ Do You Yahoo!? Yahoo! Mail – Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 21 13:15:06 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA17930 for dvd-discuss-outgoing; Mon, 21 Aug 2000 13:15:06 -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 NAA17926 for ; Mon, 21 Aug 2000 13:15:00 -0400 Received: from ip143.bedford.ma.pub-ip.psi.net ([38.32.9.143]) by relay21.smtp.psi.net with smtp (Exim 3.13 #3) id 13QvA5-0004fI-00 for dvd-discuss@eon.law.harvard.edu; Mon, 21 Aug 2000 13:15:01 -0400 From: Ron Gustavson To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] introduction Date: Mon, 21 Aug 2000 13:08:32 -0400 Message-ID: <74o2qsofgmjiqdg77s8t71lqor1i74abd7@4ax.com> References: <00081906523901.27287@frankenstein.lumbercartel.com> <20000819155255.A19478@ramtop.demon.co.uk> <00081908131600.27457@frankenstein.lumbercartel.com> <20000820102533.A21852@ramtop.demon.co.uk> <14751.57113.532946.269002@patris.bel-kwinith.org> <20000820172047.A23428@ramtop.demon.co.uk> <14751.65304.811214.879001@patris.bel-kwinith.org> <200008210219.WAA04451@soggy-fibers.ai.mit.edu> <2og1qsk2d0mpj3euaaecffvldmi6vnerld@4ax.com> In-Reply-To: <2og1qsk2d0mpj3euaaecffvldmi6vnerld@4ax.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 NAA17928 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu >I'd really like to see DVD rebuilt the way it should have been-- >no Macrovision, no region codes, but some control over unauthorized >access. [Although just a demonstration might also suffice.] more explanation... The only way to influence Hollywood is through the marketplace. While the big studios won't sign on to an open source effort, the existence of such would provide an alternative for new producers who don't want to buy into the current system, but still want some control over their published works. The fact is that for over four years an entire industry has had to cough a few times, swallow hard, and psych themselves up just to give a powerpoint demo on DVD. CSS is universally hated, but everyone is powerless to change it. __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 21 13:16:45 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA18019 for dvd-discuss-outgoing; Mon, 21 Aug 2000 13:16:45 -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 NAA18014 for ; Mon, 21 Aug 2000 13:16:43 -0400 Message-ID: <20000821171614.24907.qmail@web512.mail.yahoo.com> Received: from [131.44.121.4] by web512.mail.yahoo.com; Mon, 21 Aug 2000 10:16:14 PDT Date: Mon, 21 Aug 2000 10:16:14 -0700 (PDT) From: Bryan Taylor Subject: [dvd-discuss] First Sale Rights - Novell v NTC To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Everybody's by now read what Kaplan said about the First Sale argument: that it's sophistry, that "First Sale" applies only to the right to resell goods, that 17 USC 109(c) doesn't exist. It's probably good to take a look at what another court had to say about it. Judge Greene believes that First Sale means that when you own the copy, you own the good, and thereby obtain "the same rights as exist in the purchase of any other good". The fact that this was first recognized in cases where copyright owners tried to inhibit further sales of copies of their works does not change the underlying rational: once the copyright owner voluntaritly takes their reward by sale in the marketplace, they do 'consent', as Kaplan puts it, to the sweeping loss of control associated with transfering ownership of a good. Novell v. Network Trade Center 25 F. Supp. 2d 1218 (C.D. Utah 1997) http://bioinformatics.ucsf.edu/bwtaylor/dvd/cases/Novell_v_NTC.html This Court holds that transactions making up the distribution chain from Novell through NTC to the end-user are "sales" governed by the U.C.C. Therefore, the first sale doctrine applies. It follows that the purchaser is an "owner" by way of sale and is entitled to the use and enjoyment of the software with the same rights as exist in the purchase of any other good. Said software transactions do not merely constitute the sale of a license to use the software. The shrinkwrap license included with the software is therefore invalid as against such a purchaser insofar as it purports to maintain title to the software in the copyright owner. __________________________________________________ Do You Yahoo!? Yahoo! Mail – Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 21 13:33:55 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA18329 for dvd-discuss-outgoing; Mon, 21 Aug 2000 13:33:55 -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 NAA18326 for ; Mon, 21 Aug 2000 13:33:53 -0400 Message-ID: <20000821173326.28035.qmail@web512.mail.yahoo.com> Received: from [131.44.121.4] by web512.mail.yahoo.com; Mon, 21 Aug 2000 10:33:26 PDT Date: Mon, 21 Aug 2000 10:33:26 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] code as speech To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --- Lars Gaarden wrote: > I thought this had already been covered. > > RE for the purpose of interoperability is allowed both in Germany and > Norway. You do _not_ lose this right even if you sign a contract or > click an EULA that states otherwise. This has been asserted, but I haven't seen the legal citation for it. I have seen one for EU law, but I don't know that that really binds Norway. Certainly we all hope it's this way. The DVD-CCA will certainly not stipulate to it, though. Even so, there is still the thorny issue of the forum selection clause. The DVD-CCA will certainly argue that the contract isn't governed by Norwegian law anyway, but rather CA law as it says in the contract. __________________________________________________ Do You Yahoo!? Yahoo! Mail – Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 21 13:47:03 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA18491 for dvd-discuss-outgoing; Mon, 21 Aug 2000 13:47:03 -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 NAA18488 for ; Mon, 21 Aug 2000 13:47:03 -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 NAA11892 for ; Mon, 21 Aug 2000 13:47:08 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id NAA07169; Mon, 21 Aug 2000 13:47:07 -0400 (EDT) Date: Mon, 21 Aug 2000 13:47:07 -0400 (EDT) Message-Id: <200008211747.NAA07169@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] code as speech In-Reply-To: <20000821173326.28035.qmail@web512.mail.yahoo.com> References: <20000821173326.28035.qmail@web512.mail.yahoo.com> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Bryan Taylor writes: > > --- Lars Gaarden wrote: > > I thought this had already been covered. > > > > RE for the purpose of interoperability is allowed both in Germany and > > Norway. You do _not_ lose this right even if you sign a contract or > > click an EULA that states otherwise. > > This has been asserted, but I haven't seen the legal citation for it. I > have seen one for EU law, but I don't know that that really binds > Norway. Certainly we all hope it's this way. The DVD-CCA will certainly > not stipulate to it, though. Some relevant Norwegian law is cited in the declaration of Jon Bing in the California case, which may be read in the EFF archive at http://www.eff.org/pub/Intellectual_property/DVDCCA_case/20000118_bing_norway_law_decl.html rst From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 21 13:51:46 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA18623 for dvd-discuss-outgoing; Mon, 21 Aug 2000 13:51:46 -0400 Received: from web515.mail.yahoo.com (web515.mail.yahoo.com [216.115.104.230]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id NAA18620 for ; Mon, 21 Aug 2000 13:51:44 -0400 Message-ID: <20000821175117.16664.qmail@web515.mail.yahoo.com> Received: from [131.44.121.4] by web515.mail.yahoo.com; Mon, 21 Aug 2000 10:51:17 PDT Date: Mon, 21 Aug 2000 10:51:17 -0700 (PDT) From: Bryan Taylor Subject: [dvd-discuss] Norway Law preempts RE contracts [was: code as speech] To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --- Tom Vogt wrote: > Daniel Richards wrote: > > FIrst of all, isn't REing LEGAL in Norway? I've heard that over > > there it's a right that can't be uspered by any kind of > >"shrink-wrap" "contracts". > > the reference is on my webpage. I think it's on the > http://www.lemuria.org/DeCSS/decss.html page. norwegian original and > english translation. Ah, this is good. I just posted that nobody had provided these. For the lawyers: How do you get a US judge to take notice of another country's law? It shows as '§ 39i', but I'm sure this isn't the complete citation. The english translation is at: http://www.lemuria.org/DeCSS/norwegianlaw.txt These paragraphs cannot be revoked by contract. The original Norwegian version: http://www.lovdata.no/all/tl-19610512-002-029.html#39i "Bestemmelsene i denne paragraf kan ikke fravikes ved avtale." __________________________________________________ Do You Yahoo!? Yahoo! Mail – Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 21 14:12:42 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA18721 for dvd-discuss-outgoing; Mon, 21 Aug 2000 14:12:42 -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 OAA18718 for ; Mon, 21 Aug 2000 14:12:37 -0400 Received: from schoen by zork.zork.net with local (Exim 3.12 #1 (Debian)) id 13Qw3q-0002wy-00; Mon, 21 Aug 2000 11:12:38 -0700 Date: Mon, 21 Aug 2000 11:12:38 -0700 From: Seth David Schoen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] code as speech Message-ID: <20000821111238.Z5992@zork.net> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <200008211641.MAA32633@samsara.law.cwru.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0.1i In-Reply-To: <200008211641.MAA32633@samsara.law.cwru.edu>; from junger@samsara.law.cwru.edu on Mon, Aug 21, 2000 at 12:41:19PM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Peter D. Junger writes: > Frank Andrew Stevenson writes: > > : On Mon, 21 Aug 2000, Sphere wrote: > : > We need to find some more "no choices" for > : > them to make. Maybe Copyleft can fit the > : > entire listing on a coffee mug. > : > : That shouldn't pose much of a problem, this source snippet will be > : legible on a business card ( using 3pt. legal eystrain font ). BTW this is > : a condensed version of exihibit B ( Hoy declaration, entered into the > : public record in CA by the DVD CCA ) > : > : frank > > Is that the CSS code? If it is, why doesn't your transmitting it to > this list, which includes furriners, violate the Export Administration > Regulations applicable to encryption software? > > (I am not saying that it does, but I am deleting the actual code > just to be on the safe side.) (1) It's decryption code rather than encryption code. Code which couldn't be used or readily modified to achieve confidentiality was often exportable under the old regulations (even under State Department jurisdiction, I think). (2) Frank isn't a U.S. citizen and doesn't live in the U.S. (does AECA apply extraterritorially to non-citizens?). (3) The EARs now appear to permit open-source crypto code to be posted to a public mailing list, maybe kinda sorta in some circumstances under certain conditions. Anyway, we can await _Universal City Studios et al. v. The President and Fellows of Harvard College_. :-) -- 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 Aug 21 14:19:21 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA18846 for dvd-discuss-outgoing; Mon, 21 Aug 2000 14:19:21 -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 OAA18843 for ; Mon, 21 Aug 2000 14:19:20 -0400 Received: from schoen by zork.zork.net with local (Exim 3.12 #1 (Debian)) id 13QwAP-0002xx-00; Mon, 21 Aug 2000 11:19:25 -0700 Date: Mon, 21 Aug 2000 11:19:25 -0700 From: Seth David Schoen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Norway Law preempts RE contracts [was: code as speech] Message-ID: <20000821111925.A5992@zork.net> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <20000821175117.16664.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: <20000821175117.16664.qmail@web515.mail.yahoo.com>; from bryan_w_taylor@yahoo.com on Mon, Aug 21, 2000 at 10:51:17AM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Bryan Taylor writes: > --- Tom Vogt wrote: > > Daniel Richards wrote: > > > FIrst of all, isn't REing LEGAL in Norway? I've heard that over > > > there it's a right that can't be uspered by any kind of > > >"shrink-wrap" "contracts". > > > > the reference is on my webpage. I think it's on the > > http://www.lemuria.org/DeCSS/decss.html page. norwegian original and > > english translation. > > Ah, this is good. I just posted that nobody had provided these. > > For the lawyers: How do you get a US judge to take notice of another > country's law? It shows as '? 39i', but I'm sure this isn't the > complete citation. > > The english translation is at: > http://www.lemuria.org/DeCSS/norwegianlaw.txt > These paragraphs cannot be revoked by contract. > > The original Norwegian version: > http://www.lovdata.no/all/tl-19610512-002-029.html#39i > "Bestemmelsene i denne paragraf kan ikke fravikes ved avtale." If Norway has no laws against breaking into other people's computers, and a Norwegian breaks into our computer and steals our information, are people who knowingly republish it then not misappropriating it, simply because the intermediate step was legal in Norway? Why should California allow a foreign jurisdiction to pre-empt arbitrarily its public policy, including its trade secret laws, just because that jurisdiction has a different view of what constitutes misappropriation? Admittedly, our suit against Jon Johansen is utter madness, but _some_ of the people we sued do live here in California... -- 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 Aug 21 14:27:44 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA18981 for dvd-discuss-outgoing; Mon, 21 Aug 2000 14:27:44 -0400 Received: from mail.inka.de (mail@quechua.inka.de [212.227.14.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id OAA18978 for ; Mon, 21 Aug 2000 14:27:40 -0400 Received: from sites.inka.de (puric.inka.de [212.227.14.17]) by mail.inka.de with esmtp id 13QwIE-0002sr-00; Mon, 21 Aug 2000 20:27:30 +0200 Received: from localhost by sites.inka.de with local id 13QwIG-0001kq-00; Mon, 21 Aug 2000 20:27:32 +0200 Date: Mon, 21 Aug 2000 20:27:32 +0200 From: Sham Gardner To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] code as speech Message-ID: <20000821202732.A5496@inka.de> References: <200008211641.MAA32633@samsara.law.cwru.edu> <20000821111238.Z5992@zork.net> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0i In-Reply-To: <20000821111238.Z5992@zork.net>; from schoen@loyalty.org on Mon, Aug 21, 2000 at 11:12:38AM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Mon, Aug 21, 2000 at 11:12:38AM -0700, Seth David Schoen wrote: > (1) It's decryption code rather than encryption code. Code which > couldn't be used or readily modified to achieve confidentiality was > often exportable under the old regulations (even under State Department > jurisdiction, I think). > (2) Frank isn't a U.S. citizen and doesn't live in the U.S. (does AECA > apply extraterritorially to non-citizens?). > (3) The EARs now appear to permit open-source crypto code to be > posted to a public mailing list, maybe kinda sorta in some > circumstances under certain conditions. (4) CSS is 40 bit crypto which can be exported? I thought that was the point it not being stronger. Sham -- http://sites.inka.de/risctaker/DeCSS/ "The first speech censored, the first thought forbidden, the first freedom denied, chains us all irrevocably." (Jean-Luc Picard) From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 21 14:36:57 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA19223 for dvd-discuss-outgoing; Mon, 21 Aug 2000 14:36:57 -0400 Received: from mail.lemuria.org (lemuria.borgfelde.ricardo.de [195.244.103.65]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id OAA19220 for ; Mon, 21 Aug 2000 14:36:53 -0400 Received: from lemuria.org by mail.lemuria.org via rsmtp with bsmtp id for ; Mon, 21 Aug 2000 20:25:06 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Received: by lemuria.org via sendmail with stdio id for dvd-discuss@eon.law.harvard.edu; Mon, 21 Aug 2000 20:10:06 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Date: Mon, 21 Aug 2000 20:10:06 +0200 From: Tom Vogt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] code as speech Message-ID: <20000821201006.A21860@lemuria.org> References: <39A110C6.593AFA8B@mediaone.net> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0pre3i In-Reply-To: X-Privacy: If you can, please encrypt your mails - finger for key Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Jed Borod wrote: > I would love to see people distribute mp3s of someone reading the DeCSS > source code. Coffee mugs are good, maybe a book too. The MPAA will have to > become progressively more ridiculous in order to stop *all* distribution of > the code. I'm fairly sure that 2600 has long decided to go down that road as long as they can. for example, I can perfectly imagine that they'll use "off the hook" (their NY radio show) to do a decss reading. -- "The net treats censorship as a malfunction and re-routes around it." (John Gilmore) From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 21 14:44:05 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA19338 for dvd-discuss-outgoing; Mon, 21 Aug 2000 14:44:05 -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 OAA19335 for ; Mon, 21 Aug 2000 14:44:03 -0400 Received: from ppp.anonymizer.com (c03-128.015.popsite.net [64.24.74.128]) by cyberpass.net (8.8.8/8.7.3) with ESMTP id LAA21431; Mon, 21 Aug 2000 11:46:07 -0700 (PDT) Message-Id: <4.3.2.7.2.20000821112907.04a55360@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, 21 Aug 2000 11:43:51 -0700 To: dvd-discuss@eon.law.harvard.edu, dvd-discuss@eon.law.harvard.edu From: "James S. Tyre" Subject: Re: [dvd-discuss] Norway Law preempts RE contracts [was: code as speech] In-Reply-To: <20000821175117.16664.qmail@web515.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 OAA19336 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu At 10:51 AM 8/21/2000 -0700, Bryan Taylor wrote: >For the lawyers: How do you get a US judge to take notice of another >country's law? It shows as '§ 39i', but I'm sure this isn't the >complete citation. I'm guessing that you are familiar with Martindale-Hubbell, at least to the extent that you've seen the web interface where you can look up attorneys. Not on their web site (I think), but in the paper version, they have a volume devoted to, for lack of a better description, the more popular treaties and laws of non U.S. nations. M-H is sufficiently authoritative that if what you want is in there, judges usually will just accept from there, in the absence of a specific showing that what M-H has is wrong, outdated, etc. If what you want is not in there (and I don't have the book with me to look) then you improvise. A Declaration from a legal officer at the U.S. Embassy in Norway likely would work, as would, for example, a Declaration of an attorney licensed in both Norway and CA. (Note that I'm speaking of a declaration which sets forth the law verbatim, assuming it is a statute, not the attorney's interpretation of the law. In that regard, there are court-certified translation services, and having the law "officially" translated by a certified Norwegian->English Translator would be better than having the Declarant do his/her own translation.) Even though I'm not licensed anywhere outside of the U.S., I have had foreign courts accept my Declaration (or their local equivalent) of what the relevant U.S. law says. It gets more dicey if the foreign nation is, like the U.S., a common law nation, where case law can put all sorts of interesting interpretations on statutes, and where the law may exist only in the cases, not the statutes. But while I am not specifically familiar with Norway, most of Europe (excluding the U.K.) is civil law, loosely derived from the old Napoleanic codes, meaning that much more of the law can be found in the statutes themselves. -------------------------------------------------------------------- James S. Tyre mailto:jstyre@jstyre.com 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 Aug 21 14:49:44 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA19497 for dvd-discuss-outgoing; Mon, 21 Aug 2000 14:49:44 -0400 Received: from tneu.visi.com (tneu.visi.com [209.98.6.48]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id OAA19494 for ; Mon, 21 Aug 2000 14:49:42 -0400 Received: from tneu.visi.com (tneu.visi.com [163.228.19.198]) by tneu.visi.com (Postfix) with ESMTP id 5D27542A for ; Mon, 21 Aug 2000 11:52:07 -0500 (CDT) Date: Mon, 21 Aug 2000 11:52:07 -0500 (CDT) From: tim To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Another Pro-plaintiff article. In-Reply-To: <39A11E4F.4A4DB9E5@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 http://www.it.fairfax.com.au/communications/20000815/A2904-2000Aug14.html -- =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- ______ _ __ "If you don't have the freedom to use what you / ' ) ) own - then you do not own anything." / o ______ / / _ . . No apologies to Jack Valenti or the MPAA / <_/ / / < / (_; Mon, 21 Aug 2000 15:08:30 -0400 Message-ID: <20000821190805.16200.qmail@web512.mail.yahoo.com> Received: from [131.44.121.4] by web512.mail.yahoo.com; Mon, 21 Aug 2000 12:08:05 PDT Date: Mon, 21 Aug 2000 12:08:05 -0700 (PDT) From: Bryan Taylor Subject: [dvd-discuss] Kaplan's Amazing Ellipsis To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Did anyone else notice that Kaplan put an elipsis over "but in no event shall impose a prior restraint on free speech or the press protected under the 1st amendment to the Constitution; " when he quoted 1203(b)(1)'s empowerment of judicial injunctions on p83. He had in fact ruled that DeCSS was 'protected' under the 1st amendment, but he offers no explaination for this amazing contradiction. "As computer code—whether source or object—is a means of expressing ideas, the First Amendment must be considered before its dissemination may be prohibited or regulated. In that sense, computer code is covered or, as sometimes is said, 'protected' by the First Amendment." [p51] __________________________________________________ Do You Yahoo!? Yahoo! Mail – Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 21 15:14:59 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA19920 for dvd-discuss-outgoing; Mon, 21 Aug 2000 15:14:59 -0400 Received: from cyclesoftware.com (www.cyclesoftware.com [209.46.107.178]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id PAA19917 for ; Mon, 21 Aug 2000 15:14:57 -0400 Received: from [204.1.1.128] ([204.1.1.128] verified) by cyclesoftware.com (Stalker SMTP Server 1.8b6) with ESMTP id S.0000644896 for ; Mon, 21 Aug 2000 14:14:49 -0500 Mime-Version: 1.0 X-Sender: steve_bryan@mail.mac.com Message-Id: In-Reply-To: <20000821111925.A5992@zork.net> References: <20000821175117.16664.qmail@web515.mail.yahoo.com> <20000821111925.A5992@zork.net> Date: Mon, 21 Aug 2000 14:14:31 -0500 To: dvd-discuss@eon.law.harvard.edu From: steve bryan Subject: Re: [dvd-discuss] Norway Law preempts RE contracts [was: code as speech] 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 Seth David Schoen wrote: > >If Norway has no laws against breaking into other people's computers, >and a Norwegian breaks into our computer and steals our information, >are people who knowingly republish it then not misappropriating it, >simply because the intermediate step was legal in Norway? > >Why should California allow a foreign jurisdiction to pre-empt >arbitrarily its public policy, including its trade secret laws, just >because that jurisdiction has a different view of what constitutes >misappropriation? > >Admittedly, our suit against Jon Johansen is utter madness, but _some_ >of the people we sued do live here in California... > I don't understand how anyone can make a claim that someone was breaking into someone else's computer. Where does this claim originate? For instance if I were guilty of breaking into someone else's computer that would indicate I had either physically gained access to the computer or used its presence on a network to gain illicit access to it. The sort of activity popularized in dim-witted Hollywood entertainment. How can this possibly be relevant to a discussion of reverse engineering? From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 21 15:16:55 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA20018 for dvd-discuss-outgoing; Mon, 21 Aug 2000 15:16:55 -0400 Received: from mail.lemuria.org (lemuria.borgfelde.ricardo.de [195.244.103.65]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id PAA20014 for ; Mon, 21 Aug 2000 15:16:52 -0400 Received: from lemuria.org by mail.lemuria.org via rsmtp with bsmtp id for ; Mon, 21 Aug 2000 21:08:14 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Received: by lemuria.org via sendmail with stdio id for dvd-discuss@eon.law.harvard.edu; Mon, 21 Aug 2000 20:37:26 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Date: Mon, 21 Aug 2000 20:37:26 +0200 From: Tom Vogt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Norway Law preempts RE contracts [was: code as speech] Message-ID: <20000821203726.B21999@lemuria.org> References: <20000821175117.16664.qmail@web515.mail.yahoo.com> <20000821111925.A5992@zork.net> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0pre3i In-Reply-To: <20000821111925.A5992@zork.net> X-Privacy: If you can, please encrypt your mails - finger for key Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Seth David Schoen wrote: > > If Norway has no laws against breaking into other people's computers, > and a Norwegian breaks into our computer and steals our information, > are people who knowingly republish it then not misappropriating it, > simply because the intermediate step was legal in Norway? > > Why should California allow a foreign jurisdiction to pre-empt > arbitrarily its public policy, including its trade secret laws, just > because that jurisdiction has a different view of what constitutes > misappropriation? a) because we have something called national souveranity (sp?). b) if dvd cca doesn't like the laws in norway, the superiour court of california is definitely not the right place to discuss that. go to either norway or an appropriate international body. c) what do you propose instead if the answer is "california should not allow a foreign jurisdiction to [...whatever...]" - and the foreign jurisdiction tells you to stick it? declare war? > Admittedly, our suit against Jon Johansen is utter madness, but _some_ > of the people we sued do live here in California... however, the violation of the law that is required to make the dissemination of your alleged trade secret a MISAPPROPRIATION requires that the initial disclosure was unlawful and/or breaking a contract. unless I'm terribly mistaken, trade secret law means that once your "secret" is no longer a secret, you've had it. misappropriation only applies to the guy publishing the book about it, not everyone who reads it and tells his friends. -- "The net treats censorship as a malfunction and re-routes around it." (John Gilmore) From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 21 15:16:49 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA20008 for dvd-discuss-outgoing; Mon, 21 Aug 2000 15:16:49 -0400 Received: from mail.lemuria.org (lemuria.borgfelde.ricardo.de [195.244.103.65]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id PAA20002 for ; Mon, 21 Aug 2000 15:16:47 -0400 Received: from lemuria.org by mail.lemuria.org via rsmtp with bsmtp id for ; Mon, 21 Aug 2000 21:08:14 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Received: by lemuria.org via sendmail with stdio id for dvd-discuss@eon.law.harvard.edu; Mon, 21 Aug 2000 20:27:01 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Date: Mon, 21 Aug 2000 20:27:01 +0200 From: Tom Vogt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] code as speech Message-ID: <20000821202701.A21999@lemuria.org> References: <200008211641.MAA32633@samsara.law.cwru.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0pre3i In-Reply-To: <200008211641.MAA32633@samsara.law.cwru.edu> X-Privacy: If you can, please encrypt your mails - finger for key Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu "Peter D. Junger" wrote: > Is that the CSS code? If it is, why doesn't your transmitting it to > this list, which includes furriners, violate the Export Administration > Regulations applicable to encryption software? because it's a weak encryption - 40 bits. remember netscape? there are still sepearte "US only" and "non-US" download sites. the us site contains 128 bit SSL, the non-us only 48-bit. weak encryption has always been considered ok by the export regulations. -- "The net treats censorship as a malfunction and re-routes around it." (John Gilmore) From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 21 15:37:40 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA21159 for dvd-discuss-outgoing; Mon, 21 Aug 2000 15:37:40 -0400 Received: from hotmail.com (f87.law8.hotmail.com [216.33.241.87]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA21156 for ; Mon, 21 Aug 2000 15:37:39 -0400 Received: from mail pickup service by hotmail.com with Microsoft SMTPSVC; Mon, 21 Aug 2000 12:37:11 -0700 Received: from 208.41.124.41 by lw8fd.law8.hotmail.msn.com with HTTP; Mon, 21 Aug 2000 GMT X-Originating-IP: [208.41.124.41] From: "Richard Ramos" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] code as speech Date: Mon, 21 Aug 2000 19:37:11 GMT Mime-Version: 1.0 Content-Type: text/plain; format=flowed Message-ID: X-OriginalArrivalTime: 21 Aug 2000 19:37:11.0173 (UTC) FILETIME=[3322B350:01C00BA7] Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu >because it's a weak encryption - 40 bits. >remember netscape? there are still sepearte "US only" and "non-US" > >download >sites. the us site contains 128 bit SSL, the non-us only 48-bit. weak >encryption has always been considered ok by the export regulations. > > >-- >"The net treats censorship as a malfunction and re-routes around it." >(John Gilmore) Remember the other reason for a weak encryption is the real time decrypting and processing of the information. These standards were set in 1996. Computing power has come a way since then. Most of this was done in order to keep cost low for players. Richard Ramos ________________________________________________________________________ Get Your Private, Free E-mail from MSN Hotmail at http://www.hotmail.com From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 21 17:52:05 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA23354 for dvd-discuss-outgoing; Mon, 21 Aug 2000 17:52:05 -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 RAA23351 for ; Mon, 21 Aug 2000 17:52:04 -0400 Received: from mediaone.net (h0060b03c5b8b.ne.mediaone.net [24.128.18.77]) by chmls05.mediaone.net (8.8.7/8.8.7) with ESMTP id RAA15504 for ; Mon, 21 Aug 2000 17:52:09 -0400 (EDT) Message-ID: <39A1A488.885F8C5E@mediaone.net> Date: Mon, 21 Aug 2000 17:52:08 -0400 From: Sphere X-Mailer: Mozilla 4.73 [en] (WinNT; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] introduction References: <20000818210635.A28207@lemuria.org> <200008211308.JAA05462@soggy-fibers.ai.mit.edu> <39A12D65.5DB04655@mediaone.net> <00082106525302.09104@frankenstein.lumbercartel.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 "D. C. Sessions" wrote: > > On Mon, 21 Aug 2000, Sphere wrote: > > "Robert S. Thau" wrote: > > > Paul Fenimore writes: ... > > The question is, can the analogy be made to stick? > > Our mission is to make the answer NO. > > > > I think the main problem with your analogy is that > > heroin has been made illegal based upon a (presumed) > > direct interest of the government's. DeCSS has been > > made illegal based upon a particular commercial > > interest. The government has no valid interest in > > a specific commercial enterprise, and certainly > > not an overriding interest in that enterprise. > > That fits the analogy quite well, though. The point of it is that > a contrived situation engineered to bring the First Amendment > in can't be used wherever you want to make something legal, > be it chemical or technological. The purported illegality of > DeCSS/LiViD is bogus independent of any one author's wishes. > Well... Sorting out all the legal arrows available to each side is going to take time, but if a large enough number of people can be involved then a contrived situation engineered to bring the First Amendment in can be used. Copyleft's evidence on the number of T-shirts sold is rather solid evidence of Freedom of Association questions; which is in turn evidence against a commercial interpretation of DeCSS and in favor of considering DeCSS as political speech. The T-shirts out the door are going to make it very hard to make anything other than a strict analysis stick. The one thing the courts must most fear is the possibility that they will be ignored, and in this case the courts are guarenteed to be ignored -- or, as has been pointed out in the Open Source community, it's a game of Bop the Mole. They might be able to get away with putting 500,000 heroin addicts in prison, but I'd like to see them try putting 1,000 programmers in the clink. That'd be about 200 CEOs screaming bloody murder just for starters. -- Sphere. Is DeCSS.c obscene? Why can't I read it? Can knowledge be forbidden? From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 21 17:56:03 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA23470 for dvd-discuss-outgoing; Mon, 21 Aug 2000 17:56:03 -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 RAA23467 for ; Mon, 21 Aug 2000 17:56:02 -0400 Received: from mediaone.net (h0060b03c5b8b.ne.mediaone.net [24.128.18.77]) by chmls05.mediaone.net (8.8.7/8.8.7) with ESMTP id RAA18247 for ; Mon, 21 Aug 2000 17:56:07 -0400 (EDT) Message-ID: <39A1A578.A427409@mediaone.net> Date: Mon, 21 Aug 2000 17:56:08 -0400 From: Sphere X-Mailer: Mozilla 4.73 [en] (WinNT; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] code as speech 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 Jed Borod wrote: > > on 8/21/00 7:21 AM, Sphere wrote: > > > We need to find some more "no choices" for > > them to make. Maybe Copyleft can fit the > > entire listing on a coffee mug. > > > > What other commercial enterprises do we > > have in our camp who could find a way to > > profit off the DeCSS source? At this > > point it would be very hard to paint > > someone newly in the game as stealing > > a secret. Preying off notoriety would > > be closer to the truth. > > I would love to see people distribute mp3s of someone reading the DeCSS > source code. Coffee mugs are good, maybe a book too. The MPAA will have to > become progressively more ridiculous in order to stop *all* distribution of > the code. Books aren't political enough. How about stenciling the source on the sides of buildings? Graffiti is nice and political. > -- > Jed Borod > -- Sphere. Is DeCSS.c obscene? Why can't I read it? Can knowledge be forbidden? From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 21 18:06:26 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA23886 for dvd-discuss-outgoing; Mon, 21 Aug 2000 18:06:26 -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 SAA23883 for ; Mon, 21 Aug 2000 18:06:25 -0400 Received: from mediaone.net (h0060b03c5b8b.ne.mediaone.net [24.128.18.77]) by chmls05.mediaone.net (8.8.7/8.8.7) with ESMTP id SAA25572 for ; Mon, 21 Aug 2000 18:06:30 -0400 (EDT) Message-ID: <39A1A7E6.57F330AD@mediaone.net> Date: Mon, 21 Aug 2000 18:06:30 -0400 From: Sphere X-Mailer: Mozilla 4.73 [en] (WinNT; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] code as speech 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 Jed Borod wrote: > > on 8/21/00 7:21 AM, Sphere wrote: > > > We need to find some more "no choices" for > > them to make. Maybe Copyleft can fit the > > entire listing on a coffee mug. > > > > What other commercial enterprises do we > > have in our camp who could find a way to > > profit off the DeCSS source? At this > > point it would be very hard to paint > > someone newly in the game as stealing > > a secret. Preying off notoriety would > > be closer to the truth. > > I would love to see people distribute mp3s of someone reading the DeCSS > source code. Coffee mugs are good, maybe a book too. The MPAA will have to > become progressively more ridiculous in order to stop *all* distribution of > the code. Handbills! Even I could figure out how to stand on a street corner handing out copies of DeCSS. > -- > Jed Borod > -- Sphere. Is DeCSS.c obscene? Why can't I read it? Can knowledge be forbidden? From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 21 18:15:53 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA24130 for dvd-discuss-outgoing; Mon, 21 Aug 2000 18:15:53 -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 SAA24127 for ; Mon, 21 Aug 2000 18:15:52 -0400 Received: from mediaone.net (h0060b03c5b8b.ne.mediaone.net [24.128.18.77]) by chmls06.mediaone.net (8.8.7/8.8.7) with ESMTP id SAA24867 for ; Mon, 21 Aug 2000 18:15:56 -0400 (EDT) Message-ID: <39A1AA1D.826B34F@mediaone.net> Date: Mon, 21 Aug 2000 18:15:57 -0400 From: Sphere X-Mailer: Mozilla 4.73 [en] (WinNT; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] code as speech References: <39A110C6.593AFA8B@mediaone.net> <20000821201006.A21860@lemuria.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 Tom Vogt wrote: > > Jed Borod wrote: > > I would love to see people distribute mp3s of someone reading the DeCSS > > source code. Coffee mugs are good, maybe a book too. The MPAA will have to > > become progressively more ridiculous in order to stop *all* distribution of > > the code. > > I'm fairly sure that 2600 has long decided to go down that road as long as > they can. for example, I can perfectly imagine that they'll use "off the > hook" (their NY radio show) to do a decss reading. He's a better man than I am. Being in his position takes guts. > -- > "The net treats censorship as a malfunction and re-routes around it." > (John Gilmore) -- Sphere. Is DeCSS.c obscene? Why can't I read it? Can knowledge be forbidden? From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 21 18:22:31 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA24218 for dvd-discuss-outgoing; Mon, 21 Aug 2000 18:22:31 -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 SAA24215 for ; Mon, 21 Aug 2000 18:22:30 -0400 Received: from mediaone.net (h0060b03c5b8b.ne.mediaone.net [24.128.18.77]) by chmls06.mediaone.net (8.8.7/8.8.7) with ESMTP id SAA28480 for ; Mon, 21 Aug 2000 18:22:35 -0400 (EDT) Message-ID: <39A1ABAB.C401EED2@mediaone.net> Date: Mon, 21 Aug 2000 18:22:35 -0400 From: Sphere X-Mailer: Mozilla 4.73 [en] (WinNT; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss Subject: [dvd-discuss] Location question Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Where is the CA case being tried, or even better what is the contact for the nearest Linux User's Group (LUG) to where it's being tried? I think getting them to hand out copies of DeCSS on the street outside the court house during court hearings would be a "good idea". -- Sphere. Is DeCSS.c obscene? Why can't I read it? Can knowledge be forbidden? From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 21 20:09:49 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA25614 for dvd-discuss-outgoing; Mon, 21 Aug 2000 20:09:49 -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 UAA25611 for ; Mon, 21 Aug 2000 20:09:47 -0400 Received: from schoen by zork.zork.net with local (Exim 3.12 #1 (Debian)) id 13R1dZ-0004FV-00; Mon, 21 Aug 2000 17:09:53 -0700 Date: Mon, 21 Aug 2000 17:09:53 -0700 From: Seth David Schoen To: dvd-discuss Subject: Re: [dvd-discuss] Location question Message-ID: <20000821170953.D5992@zork.net> Mail-Followup-To: dvd-discuss References: <39A1ABAB.C401EED2@mediaone.net> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0.1i In-Reply-To: <39A1ABAB.C401EED2@mediaone.net>; from sphere1952@mediaone.net on Mon, Aug 21, 2000 at 06:22:35PM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Sphere writes: > Where is the CA case being tried, or even better > what is the contact for the nearest Linux User's > Group (LUG) to where it's being tried? > > I think getting them to hand out copies of DeCSS > on the street outside the court house during court > hearings would be a "good idea". This has already happened, and people here are _very_ aware of the case. They did just that during the temporary restraining order hearing. The trial is at the Santa Clara County Superior Court, http://CLARAWEB.CO.Santa-Clara.CA.US/sct/. The closest LUG is the Silicon Valley LUG, http://www.svlug.org/. It also claims to be the world's largest LUG. You can read about the hearing on Chris DiBona's web site, http://www.dibona.com/social/dvd/. -- Seth David Schoen | And do not say, I will study when I Temp. http://www.loyalty.org/~schoen/ | have leisure; for perhaps you will down: http://www.loyalty.org/ (CAF) | not have leisure. -- Pirke Avot 2:5 From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 21 20:51:34 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA26244 for dvd-discuss-outgoing; Mon, 21 Aug 2000 20:51:34 -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 UAA26241 for ; Mon, 21 Aug 2000 20:51:33 -0400 Received: from mediaone.net (h0060b03c5b8b.ne.mediaone.net [24.128.18.77]) by chmls05.mediaone.net (8.8.7/8.8.7) with ESMTP id UAA26442 for ; Mon, 21 Aug 2000 20:51:38 -0400 (EDT) Message-ID: <39A1CE97.D543041D@mediaone.net> Date: Mon, 21 Aug 2000 20:51:35 -0400 From: Sphere X-Mailer: Mozilla 4.73 [en] (WinNT; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Location question References: <39A1ABAB.C401EED2@mediaone.net> <20000821170953.D5992@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: > > Sphere writes: > > > Where is the CA case being tried, or even better > > what is the contact for the nearest Linux User's > > Group (LUG) to where it's being tried? > > > > I think getting them to hand out copies of DeCSS > > on the street outside the court house during court > > hearings would be a "good idea". > > This has already happened, and people here are _very_ aware of the case. > They did just that during the temporary restraining order hearing. > > The trial is at the Santa Clara County Superior Court, > http://CLARAWEB.CO.Santa-Clara.CA.US/sct/. > > The closest LUG is the Silicon Valley LUG, http://www.svlug.org/. It > also claims to be the world's largest LUG. > > You can read about the hearing on Chris DiBona's web site, > http://www.dibona.com/social/dvd/. I should have expected as much. Is there a clearinghouse? > -- > 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 -- Sphere. Is DeCSS.c obscene? Why can't I read it? Can knowledge be forbidden? From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 21 21:16:49 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA26927 for dvd-discuss-outgoing; Mon, 21 Aug 2000 21:16:49 -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 ESMTP id VAA26924 for ; Mon, 21 Aug 2000 21:16:48 -0400 Received: from mail pickup service by hotmail.com with Microsoft SMTPSVC; Mon, 21 Aug 2000 18:16:24 -0700 Received: from 38.30.243.38 by lw9fd.law9.hotmail.msn.com with HTTP; Tue, 22 Aug 2000 GMT X-Originating-IP: [38.30.243.38] From: "Harold Eaton" To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] more errors in Kaplan's decision Date: Mon, 21 Aug 2000 21:16:23 EDT Mime-Version: 1.0 Content-Type: text/plain; format=flowed Message-ID: X-OriginalArrivalTime: 22 Aug 2000 01:16:24.0106 (UTC) FILETIME=[966DD0A0:01C00BD6] Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu IANAL, so I don't know if it matters that Kaplan uses factual errors to support his decision, but here are a few more: Pg 19 K>In January 1999, Norwegian prosecutors filed charges against Mr. K>Johansen stemming from the development of DeCSS. I'm not too certain about this, but it warants further probing. The trial transcript reads: J> Well, in January, on January 25, I had to go to the local J> prosecutor's office because of charges filed by the MPAA in J> Norway. Here Johansen states that the *MPAA* filed charges, not Norwegian prosecutors. Certainly Johansen's testimony doesn't accurately reflect the judges statement, but it isn't clear who is wrong. Perhaps the MPAA asked for an investigation, and the Norwegian prosecutor started an investigation, but hasn't filed charges? Is this more evidence of bias by Kaplan, or his reliance on heresay since he prefaced the testimony with "we all know the story..."? Pg 32 K>One cannot gain access to a CSS-protected work on a DVD K>without application of the three keys that are required by K>the software. One cannot lawfully gain access to the keys K> except by entering into a license with the DVD CCA K>under authority granted by the copyright owner or by purchasing K>a DVD player or drive containing the keys pursuant to such a K>license. Kaplan claims that all three keys are contained in a DVD player alone. A title key is clearly not obtained from purchasing a DVD player, lawfully or otherwise. But there may be interesting implications if this means that Kaplan has decried that anyone purchasing a DVD player has lawfully obtained authority of the copyright owner to *all* title keys whether one has paid for a movie or not. Regardless, Kaplan's paragraph is demonstrably false. I've been gone for the weekend, playing catch-up was a big job. One thought that was suggested was if one *existing* CSS DVD copyright owner would grant explicit authority, it could make for an interesting case. Ironically, I saw the movie "The people v. Larry Flynt" the other day, I was thinking: a) He (Larry Flynt) probably publishes porno DVD's b) He has a history of pushing the 1st amendment and winning c) He's just colorful enough to go up against the powers-that-be i.e. he might well grant authority to DeCSS for his movies just to piss-off those Disney A**holes. ________________________________________________________________________ Get Your Private, Free E-mail from MSN Hotmail at http://www.hotmail.com From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 21 21:40:32 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA27232 for dvd-discuss-outgoing; Mon, 21 Aug 2000 21:40:32 -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 VAA27229 for ; Mon, 21 Aug 2000 21:40:31 -0400 Received: from mediaone.net (h0060b03c5b8b.ne.mediaone.net [24.128.18.77]) by chmls05.mediaone.net (8.8.7/8.8.7) with ESMTP id VAA26396 for ; Mon, 21 Aug 2000 21:40:37 -0400 (EDT) Message-ID: <39A1DA15.7445543F@mediaone.net> Date: Mon, 21 Aug 2000 21:40:37 -0400 From: Sphere X-Mailer: Mozilla 4.73 [en] (WinNT; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] more errors in Kaplan's decision 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 Harold Eaton wrote: > > IANAL, so I don't know if it matters that Kaplan uses factual > errors to support his decision, but here are a few more: > > Pg 19 > K>In January 1999, Norwegian prosecutors filed charges against Mr. > K>Johansen stemming from the development of DeCSS. > > I'm not too certain about this, but it warants further probing. > The trial transcript reads: > > J> Well, in January, on January 25, I had to go to the local > J> prosecutor's office because of charges filed by the MPAA in > J> Norway. > > Here Johansen states that the *MPAA* filed charges, not Norwegian > prosecutors. Certainly Johansen's testimony doesn't accurately > reflect the judges statement, but it isn't clear who is wrong. > Perhaps the MPAA asked for an investigation, and the Norwegian > prosecutor started an investigation, but hasn't filed charges? > Is this more evidence of bias by Kaplan, or his reliance on > heresay since he prefaced the testimony with "we all know the > story..."? > > Pg 32 > K>One cannot gain access to a CSS-protected work on a DVD > K>without application of the three keys that are required by > K>the software. One cannot lawfully gain access to the keys > K> except by entering into a license with the DVD CCA > K>under authority granted by the copyright owner or by purchasing > K>a DVD player or drive containing the keys pursuant to such a > K>license. > > Kaplan claims that all three keys are contained in a DVD > player alone. A title key is clearly not obtained from purchasing a > DVD player, lawfully or otherwise. But there may be interesting > implications if this means that Kaplan has decried that anyone purchasing > a DVD player has lawfully obtained authority of the copyright owner > to *all* title keys whether one has paid for a movie or not. > Regardless, Kaplan's paragraph is demonstrably false. > > I've been gone for the weekend, playing catch-up was a big job. > One thought that was suggested was if one *existing* CSS DVD > copyright owner would grant explicit authority, it could make > for an interesting case. Ironically, I saw the movie "The people > v. Larry Flynt" the other day, I was thinking: > > a) He (Larry Flynt) probably publishes porno DVD's > b) He has a history of pushing the 1st amendment and winning > c) He's just colorful enough to go up against the powers-that-be > i.e. he might well grant authority to DeCSS for his movies just > to piss-off those Disney A**holes. This is rather old. How long does he hold a grudge? http://mrshowbiz.go.com/archive/news/Todays_Stories/960910/9_10_96.html I tried to figure out how he might be contacted online. I succeeded in flushing all the open browser windows without having to abort Netscape. -- Sphere. Is DeCSS.c obscene? Why can't I read it? Can knowledge be forbidden? From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 21 21:45:10 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA27337 for dvd-discuss-outgoing; Mon, 21 Aug 2000 21:45:10 -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 VAA27334 for ; Mon, 21 Aug 2000 21:45:08 -0400 Received: by aero.org id <17187-2>; Mon, 21 Aug 2000 18:44:56 -0700 Received: from mhultra.aero.org(130.221.88.102) via SMTP by aero.org, id smtpdEQBa12608; Mon Aug 21 18:44:38 2000 Received: from ladir01.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Mon, 21 Aug 2000 18:44:01 -0700 Subject: Re: [dvd-discuss] code as speech To: dvd-discuss@eon.law.harvard.edu X-Mailer: Lotus Notes Release 5.0.3 March 21, 2000 Message-Id: From: Michael.A.Rolenz@aero.org X-MIMETrack: Serialize by Router on ladir01/AeroNet/Aerospace/US(Release 5.0.3 |March 21, 2000) at 08/21/2000 06:44:01 PM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Date: Mon, 21 Aug 2000 18:44:46 -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Handbills....how about a designer toilet paper? Sphere @eon.law.harvard.edu on 08/21/2000 03:08:08 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] code as speech Jed Borod wrote: > > on 8/21/00 7:21 AM, Sphere wrote: > > > We need to find some more "no choices" for > > them to make. Maybe Copyleft can fit the > > entire listing on a coffee mug. > > > > What other commercial enterprises do we > > have in our camp who could find a way to > > profit off the DeCSS source? At this > > point it would be very hard to paint > > someone newly in the game as stealing > > a secret. Preying off notoriety would > > be closer to the truth. > > I would love to see people distribute mp3s of someone reading the DeCSS > source code. Coffee mugs are good, maybe a book too. The MPAA will have to > become progressively more ridiculous in order to stop *all* distribution of > the code. Handbills! Even I could figure out how to stand on a street corner handing out copies of DeCSS. > -- > Jed Borod > -- Sphere. Is DeCSS.c obscene? Why can't I read it? Can knowledge be forbidden? From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 21 22:12:25 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA27494 for dvd-discuss-outgoing; Mon, 21 Aug 2000 22:12:25 -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 WAA27491 for ; Mon, 21 Aug 2000 22:12:24 -0400 Message-ID: <20000822021159.17367.qmail@web510.mail.yahoo.com> Received: from [64.81.25.36] by web510.mail.yahoo.com; Mon, 21 Aug 2000 19:11:59 PDT Date: Mon, 21 Aug 2000 19:11:59 -0700 (PDT) From: Bryan Taylor Subject: [dvd-discuss] Articles To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Editorial on security-focus: http://www.securityfocus.com/templates/article.html?id=77 A Linux World article (wow, they got some great sources!) http://www.linuxworld.com/linuxworld/lw-2000-08/lw-08-decsswrapup.html __________________________________________________ Do You Yahoo!? Yahoo! Mail – Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 22 01:41:42 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id BAA29751 for dvd-discuss-outgoing; Tue, 22 Aug 2000 01:41:42 -0400 Received: from mail.inka.de (mail@quechua.inka.de [212.227.14.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id BAA29748 for ; Tue, 22 Aug 2000 01:41:36 -0400 Received: from sites.inka.de (puric.inka.de [212.227.14.17]) by mail.inka.de with esmtp id 13R6of-0005Nm-00; Tue, 22 Aug 2000 07:41:41 +0200 Received: from localhost by sites.inka.de with local id 13R6oi-0004VS-00; Tue, 22 Aug 2000 07:41:44 +0200 Date: Tue, 22 Aug 2000 07:41:44 +0200 From: Sham Gardner To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Location question Message-ID: <20000822074144.A17300@inka.de> References: <39A1ABAB.C401EED2@mediaone.net> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0i In-Reply-To: <39A1ABAB.C401EED2@mediaone.net>; from sphere1952@mediaone.net on Mon, Aug 21, 2000 at 06:22:35PM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Mon, Aug 21, 2000 at 06:22:35PM -0400, Sphere wrote: > I think getting them to hand out copies of DeCSS > on the street outside the court house during court > hearings would be a "good idea". IIRC this was done at the TRO and PI hearings. The relevant postings can probably still be found on slashdot. Sham -- http://sites.inka.de/risctaker/DeCSS/ "The first speech censored, the first thought forbidden, the first freedom denied, chains us all irrevocably." (Jean-Luc Picard) From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 22 02:00:28 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id CAA29904 for dvd-discuss-outgoing; Tue, 22 Aug 2000 02:00:28 -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 CAA29901 for ; Tue, 22 Aug 2000 02:00:27 -0400 Received: (from eds@localhost) by thud.reric.net (8.9.3/8.8.7) id BAA27750 for dvd-discuss@eon.law.harvard.edu; Tue, 22 Aug 2000 01:00:32 -0500 Date: Tue, 22 Aug 2000 01:00:32 -0500 From: Eric Seppanen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] more errors in Kaplan's decision Message-ID: <20000822010032.A27615@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 haceaton@hotmail.com on Mon, Aug 21, 2000 at 09:16:23PM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Mon, Aug 21, 2000 at 09:16:23PM -0400, Harold Eaton wrote: > (quoting Kaplan) Pg 32 > K>One cannot gain access to a CSS-protected work on a DVD > K>without application of the three keys that are required by > K>the software. One cannot lawfully gain access to the keys > K> except by entering into a license with the DVD CCA > K>under authority granted by the copyright owner or by purchasing > K>a DVD player or drive containing the keys pursuant to such a > K>license. > > Kaplan claims that all three keys are contained in a DVD > player alone. A title key is clearly not obtained from purchasing a > DVD player, lawfully or otherwise. But there may be interesting > implications if this means that Kaplan has decried that anyone purchasing > a DVD player has lawfully obtained authority of the copyright owner > to *all* title keys whether one has paid for a movie or not. > Regardless, Kaplan's paragraph is demonstrably false. That's not technically what he's claiming. He's saying you can't "lawfully gain access" to the three keys without a DVDCCA license. Ignoring the word "lawfully", and assuming you use the normal CSS algorithms and not any of Frank Stevenson's shortcuts, his statement is sorta true. Here's why: the disk and title keys are not stored as plaintext on the disk. So to acquire a disk key you need a player key. And you need that disk key to get the title keys. So, until you acquire a player key you've got nothing. As I mentioned, I'm pretty sure one of the holes Frank found allows you to recover a title key directly from the cyphertext, which would short-circuit that whole process and blow this argument away. But unless Kaplan knew that, his statement could be true from a certain point of view. However, I still think it's an extreme point of view, because of the word "lawfully". He seems to bestow some magical protection on the keys themselves. His statement implies that just FINDING THE PLAYER KEY by reverse engineering is unlawful, even if one doesn't go and distribute a "circumvention device" that offends some large copyright industry group. What law would digging for player keys offend? If I were in the mood to pick a fight I'd be tempted to slap together a "player key extractor" program that brute-forces all the player keys from the title key block on a single DVD, and post the list on a webpage :) Eric From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 22 04:37:06 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id EAA30925 for dvd-discuss-outgoing; Tue, 22 Aug 2000 04:37:06 -0400 Received: from mail.lemuria.org (lemuria.borgfelde.ricardo.de [195.244.103.65]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id EAA30918 for ; Tue, 22 Aug 2000 04:36:59 -0400 Received: from lemuria.org by mail.lemuria.org via rsmtp with bsmtp id for ; Tue, 22 Aug 2000 10:32:30 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Received: by lemuria.org via sendmail with stdio id for dvd-discuss@eon.law.harvard.edu; Tue, 22 Aug 2000 10:06:11 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Date: Tue, 22 Aug 2000 10:06:11 +0200 From: Tom Vogt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] more errors in Kaplan's decision Message-ID: <20000822100611.B24064@lemuria.org> References: Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0pre3i In-Reply-To: X-Privacy: If you can, please encrypt your mails - finger for key Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu "Harold Eaton" wrote: > Pg 19 > K>In January 1999, Norwegian prosecutors filed charges against Mr. > K>Johansen stemming from the development of DeCSS. > > I'm not too certain about this, but it warants further probing. > The trial transcript reads: it's not true. jon was questioned by the norwegian police, but there were no charges filed against him by norwegian authorities. > Perhaps the MPAA asked for an investigation, and the Norwegian > prosecutor started an investigation, but hasn't filed charges? from what I heard from jon directly this is what happened. > a) He (Larry Flynt) probably publishes porno DVD's > b) He has a history of pushing the 1st amendment and winning > c) He's just colorful enough to go up against the powers-that-be > i.e. he might well grant authority to DeCSS for his movies just > to piss-off those Disney A**holes. well, go and ask him. -- "The net treats censorship as a malfunction and re-routes around it." (John Gilmore) From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 22 04:37:01 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id EAA30921 for dvd-discuss-outgoing; Tue, 22 Aug 2000 04:37:01 -0400 Received: from mail.lemuria.org (lemuria.borgfelde.ricardo.de [195.244.103.65]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id EAA30914 for ; Tue, 22 Aug 2000 04:36:56 -0400 Received: from lemuria.org by mail.lemuria.org via rsmtp with bsmtp id for ; Tue, 22 Aug 2000 10:32:30 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Received: by lemuria.org via sendmail with stdio id for dvd-discuss@eon.law.harvard.edu; Tue, 22 Aug 2000 10:03:22 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Date: Tue, 22 Aug 2000 10:03:22 +0200 From: Tom Vogt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Location question Message-ID: <20000822100322.A24064@lemuria.org> References: <39A1ABAB.C401EED2@mediaone.net> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0pre3i In-Reply-To: <39A1ABAB.C401EED2@mediaone.net> X-Privacy: If you can, please encrypt your mails - finger for key Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Sphere wrote: > Where is the CA case being tried, or even better > what is the contact for the nearest Linux User's > Group (LUG) to where it's being tried? ca is being tried in the superior court of california, county of santa clara (or something like that. my webpage has a link to the webpage of the court). try don marti (dmarti@zgp.org) for lug contacts. I think they already did that, or something very similiar. one of the guys even handed one of the plaintiff attorneys a copy, which was promptly entered into evidence. -- "The net treats censorship as a malfunction and re-routes around it." (John Gilmore) From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 22 04:46:49 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id EAA31076 for dvd-discuss-outgoing; Tue, 22 Aug 2000 04:46:49 -0400 Received: from mail.lemuria.org (lemuria.borgfelde.ricardo.de [195.244.103.65]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id EAA31073 for ; Tue, 22 Aug 2000 04:46:48 -0400 Received: from lemuria.org by mail.lemuria.org via rsmtp with bsmtp id for ; Tue, 22 Aug 2000 10:41:47 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Received: by lemuria.org via sendmail with stdio id for dvd-discuss@eon.law.harvard.edu; Tue, 22 Aug 2000 10:33:50 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Date: Tue, 22 Aug 2000 10:33:50 +0200 From: Tom Vogt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] more errors in Kaplan's decision Message-ID: <20000822103350.A24243@lemuria.org> References: <20000822010032.A27615@thud.reric.net> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0pre3i In-Reply-To: <20000822010032.A27615@thud.reric.net> X-Privacy: If you can, please encrypt your mails - finger for key Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Eric Seppanen wrote: > As I mentioned, I'm pretty sure one of the holes Frank found allows you to > recover a title key directly from the cyphertext, which would > short-circuit that whole process and blow this argument away. But unless > Kaplan knew that, his statement could be true from a certain point of > view. decss-plus is an implementation of such a shortcut. :) > However, I still think it's an extreme point of view, because of > the word "lawfully". He seems to bestow some magical protection on the > keys themselves. His statement implies that just FINDING THE PLAYER KEY > by reverse engineering is unlawful, even if one doesn't go and distribute > a "circumvention device" that offends some large copyright industry group. > What law would digging for player keys offend? wrong question. what PEOPLE with the lobby and money to bring laws into existance would this digging offend? the plaintiffs answer that. > If I were in the mood to pick a fight I'd be tempted to slap together a > "player key extractor" program that brute-forces all the player keys from > the title key block on a single DVD, and post the list on a webpage :) if anyone wants to write that thing - send it to me via some remailer and I'll post it. -- "The net treats censorship as a malfunction and re-routes around it." (John Gilmore) From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 22 06:53:57 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id GAA31419 for dvd-discuss-outgoing; Tue, 22 Aug 2000 06:53:57 -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 GAA31416 for ; Tue, 22 Aug 2000 06:53:56 -0400 Received: from mediaone.net (h0060b03c5b8b.ne.mediaone.net [24.128.18.77]) by chmls06.mediaone.net (8.8.7/8.8.7) with ESMTP id GAA05673 for ; Tue, 22 Aug 2000 06:54:02 -0400 (EDT) Message-ID: <39A25BCB.F12621DA@mediaone.net> Date: Tue, 22 Aug 2000 06:54:03 -0400 From: Sphere X-Mailer: Mozilla 4.73 [en] (WinNT; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Location question References: <39A1ABAB.C401EED2@mediaone.net> <20000822100322.A24064@lemuria.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 Tom Vogt wrote: > ... > > I think they already did that, or something very similiar. one of the guys > even handed one of the plaintiff attorneys a copy, which was promptly > entered into evidence. So the plaintiff entered into evidence the fact that there is political organizing _caused_ by the DeCSS source code? > -- > "The net treats censorship as a malfunction and re-routes around it." > (John Gilmore) -- Sphere. Is DeCSS.c obscene? Why can't I read it? Can knowledge be forbidden? From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 22 07:26:25 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id HAA31660 for dvd-discuss-outgoing; Tue, 22 Aug 2000 07:26:25 -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 HAA31657 for ; Tue, 22 Aug 2000 07:26:24 -0400 Received: by chiara.elte.hu (Postfix, from userid 17806) id 2DEF17E1B6; Tue, 22 Aug 2000 13:26:27 +0200 (CEST) Date: Tue, 22 Aug 2000 13:35:38 +0200 (CEST) From: Ingo Molnar To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Kaplan's findings about Linux Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu " Linux, which was and continues to be developed through the open source model of software development, also is an operating system. It can be run on a PC as an alternative to Windows, although the extent to which it is so used is limited. Linux is more widely used on servers. " he misses an important point: Linux is also available on a wide array of non-PC (non-x86) hardware, including lots of 'emerging market' hardware that has no software DVD player. So in the case of Linux it's important to have access to source code, because a binary compiled for x86 Linux cannot run on StrongARM or m68k CPUs. Most of these CPUs are powerful enough to decrypt DVDs through software means. Ingo From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 22 07:37:12 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id HAA31802 for dvd-discuss-outgoing; Tue, 22 Aug 2000 07:37:12 -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 HAA31781 for ; Tue, 22 Aug 2000 07:37:11 -0400 Received: by chiara.elte.hu (Postfix, from userid 17806) id B08387E1B6; Tue, 22 Aug 2000 13:37:17 +0200 (CEST) Date: Tue, 22 Aug 2000 13:46:28 +0200 (CEST) From: Ingo Molnar To: dvd-discuss@eon.law.harvard.edu Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu " Although Mr. Johansen testified at trial that he created DeCSS in order to make a DVD player that would operate on a computer running the Linux operating system, DeCSS is a Windows executable file; that is, it can be executed only on computers running the Windows operating system. Mr. Johansen explained the fact that he created a Windows rather than a Linux program by asserting that Linux, at the time he created DeCSS, did not support the file system used on DVDs. Hence, it was necessary, he said, to decrypt the DVD on a Windows computer in order subsequently to play the decrypted files on a Linux machine. Assuming that to be true, however, the fact remains that Mr. Johansen created DeCSS in the full knowledge that it could be used on computers running Windows rather than Linux. Moreover, he was well aware that the files, once decrypted, could be copied like any other computer files. " it was not only Johansen who testified that Linux at that time could not read DVDs - numerous other witnesses testified so too. Additionally, it's obvious that he used Windows - the Xing player was running only on Windows, and for reverse engineering one has to run the program. Constantly booting between Linux and Windows, just to write a Linux program is not practical. Ingo From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 22 07:40:26 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id HAA32119 for dvd-discuss-outgoing; Tue, 22 Aug 2000 07:40:26 -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 HAA32116 for ; Tue, 22 Aug 2000 07:40:25 -0400 Received: from sites.inka.de (puric.inka.de [212.227.14.17]) by mail.inka.de with esmtp id 13RCPw-0000H6-00; Tue, 22 Aug 2000 13:40:32 +0200 Received: from localhost by sites.inka.de with local id 13RCPy-00069A-00; Tue, 22 Aug 2000 13:40:34 +0200 Date: Tue, 22 Aug 2000 13:40:34 +0200 From: Sham Gardner To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Re: your mail Message-ID: <20000822134034.D17404@inka.de> References: Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0i In-Reply-To: ; from mingo@elte.hu on Tue, Aug 22, 2000 at 01:46:28PM +0200 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > "Moreover, he > was well aware that the files, once decrypted, could be copied > like any other computer files. > " Which was obviously not possible before they were decrypted. Sham -- http://sites.inka.de/risctaker/DeCSS/ "The first speech censored, the first thought forbidden, the first freedom denied, chains us all irrevocably." (Jean-Luc Picard) From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 22 09:43:50 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA00485 for dvd-discuss-outgoing; Tue, 22 Aug 2000 09:43:50 -0400 Received: from hotmail.com (f247.law9.hotmail.com [64.4.9.247]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id JAA00482 for ; Tue, 22 Aug 2000 09:43:49 -0400 Received: from mail pickup service by hotmail.com with Microsoft SMTPSVC; Tue, 22 Aug 2000 06:43:23 -0700 Received: from 128.244.34.133 by lw9fd.law9.hotmail.msn.com with HTTP; Tue, 22 Aug 2000 GMT X-Originating-IP: [128.244.34.133] From: "Harold Eaton" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] more errors in Kaplan's decision Date: Tue, 22 Aug 2000 09:43:23 EDT Mime-Version: 1.0 Content-Type: text/plain; format=flowed Message-ID: X-OriginalArrivalTime: 22 Aug 2000 13:43:23.0607 (UTC) FILETIME=[F0EEEE70:01C00C3E] Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > > K>under authority granted by the copyright owner or by purchasing > > K>a DVD player or drive containing the keys pursuant to such a > > K>license. > > > > Kaplan claims that all three keys are contained in a DVD > > player alone. A title key is clearly not obtained from purchasing a > > DVD player, lawfully or otherwise. But there may be interesting > > implications if this means that Kaplan has decried that anyone >purchasing > > a DVD player has lawfully obtained authority of the copyright owner > > to *all* title keys whether one has paid for a movie or not. > > Regardless, Kaplan's paragraph is demonstrably false. > >That's not technically what he's claiming. He's saying you can't >"lawfully gain access" to the three keys without a DVDCCA license. >Ignoring the word "lawfully", and assuming you use the normal CSS >algorithms and not any of Frank Stevenson's shortcuts, his statement is >sorta true. I'm sorry, the last sentence says "...drive containing the *keys* pursant..." The drive only contains a single key. Kaplan is factually wrong. He is claiming that all three keys are "contain[ed]" in the player. ________________________________________________________________________ Get Your Private, Free E-mail from MSN Hotmail at http://www.hotmail.com From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 22 10:16:57 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA00643 for dvd-discuss-outgoing; Tue, 22 Aug 2000 10:16:57 -0400 Received: from world.std.com (root@world-f.std.com [199.172.62.5]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id KAA00640 for ; Tue, 22 Aug 2000 10:16:56 -0400 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 JAA02095 for ; Tue, 22 Aug 2000 09:57:03 -0400 (EDT) Mime-Version: 1.0 Message-Id: In-Reply-To: References: Date: Tue, 22 Aug 2000 09:25:37 -0400 To: dvd-discuss@eon.law.harvard.edu From: "Arnold G. Reinhold" Subject: [dvd-discuss] 40-bit encryption (Was Re: code as speech) 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 7:37 PM +0000 8/21/2000, Richard Ramos wrote: >>because it's a weak encryption - 40 bits. >>remember netscape? there are still sepearte "US only" and "non-US" >download >>sites. the us site contains 128 bit SSL, the non-us only 48-bit. weak >>encryption has always been considered ok by the export regulations. >> >> >>-- >>"The net treats censorship as a malfunction and re-routes around it." >>(John Gilmore) > >Remember the other reason for a weak encryption is the real time >decrypting and processing of the information. These standards were >set in 1996. Computing power has come a way since then. Most of >this was done in order to keep cost low for players. > >Richard Ramos I believe strong encryption was feasible and affordable in this application even way back in 1996. And I think there were signals from BXA that stronger encryption would be approved in narrow applications like CSS. I still wonder why they produced such a week product. Also 40-bit encryption did require an export license from BXA and its predecessors. If you used certain algorithms (e.g. RC4), you could expect easy, blanket approval, but source code review and a license were still needed. If I remember correctly, only 32-bit encryption or less did not require a license. Arnold Reinhold From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 22 10:16:52 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA00635 for dvd-discuss-outgoing; Tue, 22 Aug 2000 10:16:52 -0400 Received: from world.std.com (root@world-f.std.com [199.172.62.5]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id KAA00632 for ; Tue, 22 Aug 2000 10:16:50 -0400 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 JAA02111 for ; Tue, 22 Aug 2000 09:57:04 -0400 (EDT) Mime-Version: 1.0 Message-Id: In-Reply-To: <00081909095102.27658@frankenstein.lumbercartel.com> References: <399EAAF6.7C36DD9D@mediaone.net> <00081909095102.27658@frankenstein.lumbercartel.com> Date: Tue, 22 Aug 2000 09:56:59 -0400 To: dvd-discuss@eon.law.harvard.edu From: "Arnold G. Reinhold" Subject: Re: [dvd-discuss] Region coding. 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 9:08 AM -0700 8/19/2000, D. C. Sessions wrote: >On Sat, 19 Aug 2000, Sphere wrote: >> How about simply buying a disk not encoded >> for region one and then suing to be able >> to watch it? > >Go right ahead -- watch it. There's no law against it. There will be in October when acts of circumvention become illegal under 1201(a). >There's also no law guaranteeing you means to view it, though. DMCA could *deny* you the means to view it. Right now DVD players decide what region the will decode based on the first DVD disks actually played. Suppose the industry changes that and simply sells Region 1 players in Region 1, Region 2 players in Region 2, etc. Importing a Region 2 player into Region 1 would then arguably violate 1201b and using it would violate 1201a. Arnold Reinhold From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 22 11:44:05 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA01856 for dvd-discuss-outgoing; Tue, 22 Aug 2000 11:44:05 -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 LAA01853 for ; Tue, 22 Aug 2000 11:44:04 -0400 Message-ID: <20000822154335.502.qmail@web514.mail.yahoo.com> Received: from [131.44.121.4] by web514.mail.yahoo.com; Tue, 22 Aug 2000 08:43:35 PDT Date: Tue, 22 Aug 2000 08:43:35 -0700 (PDT) From: Bryan Taylor Subject: [dvd-discuss] Re: [untitled] To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-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 wrote: > > " Although Mr. Johansen testified at trial that he > created DeCSS in order to make a DVD player that would operate > on a computer running the Linux operating system, DeCSS is a > Windows executable file; that is, it can be executed only on > computers running the Windows operating system. Mr. Johansen > explained the fact that he created a Windows rather than a Linux > program by asserting that Linux, at the time he created DeCSS, > did not support the file system used on DVDs. Hence, it was > necessary, he said, to decrypt the DVD on a Windows computer in > order subsequently to play the decrypted files on a Linux machine. > Assuming that to be true, however, the fact remains that Mr. > Johansen created DeCSS in the full knowledge that it could be > used on computers running Windows rather than Linux. Moreover, he > was well aware that the files, once decrypted, could be copied > like any other computer files. > " > > it was not only Johansen who testified that Linux at that time could > not read DVDs - numerous other witnesses testified so too. > Additionally, it's obvious that he used Windows - the Xing player > was running only on Windows, and for reverse engineering one has > to run the program. Constantly booting between Linux and Windows, > just to write a Linux program is not practical. Question for the lawyers: what do you do when a judge simply ignores or dismisses testimony? Johansen, supported by Pavlovich, offered a very reasonable programming explaination for his actions. Kaplan recognized it, dismissed it as unimportant, and read into the law a requirement that to create interoperability, you must operate on the OS you interoperate with. How much weight will an appeals court give to the trial judges interpretation of testimony? __________________________________________________ Do You Yahoo!? Yahoo! Mail – Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 22 12:01:11 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA02032 for dvd-discuss-outgoing; Tue, 22 Aug 2000 12:01:11 -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 MAA02029 for ; Tue, 22 Aug 2000 12:01:07 -0400 Message-ID: <20000822160042.4419.qmail@web514.mail.yahoo.com> Received: from [131.44.121.4] by web514.mail.yahoo.com; Tue, 22 Aug 2000 09:00:42 PDT Date: Tue, 22 Aug 2000 09:00:42 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] more errors in Kaplan's decision To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --- Eric Seppanen wrote: > On Mon, Aug 21, 2000 at 09:16:23PM -0400, Harold Eaton wrote: > > (quoting Kaplan) Pg 32 > > K>One cannot gain access to a CSS-protected work on a DVD > > K>without application of the three keys that are required by > > K>the software. One cannot lawfully gain access to the keys > > K> except by entering into a license with the DVD CCA > > K>under authority granted by the copyright owner or by purchasing > > K>a DVD player or drive containing the keys pursuant to such a > > K>license. > That's not technically what he's claiming. He's saying you can't > "lawfully gain access" to the three keys without a DVDCCA license. > Ignoring the word "lawfully", and assuming you use the normal CSS > algorithms and not any of Frank Stevenson's shortcuts, his statement > is sorta true. Kaplan is really out on a limb here. Kaplan has invented a new form of intellectual property with no grounding in reality. Even the part of the DMCA that forbids access to protected copyrighted "works" isn't effective yet, not that this would protect a key. Even when it goes into effect, 1201(a)(1) clearly allows reverse engineering to identify parts of the program needed for interoperability, which can really only mean the encryption keys (how could it not include this?). Moreover, the Xing key WAS NOT PROTECTED by a TPM!! Kaplan provides NO legal reasoning, NO citation, NO caselaw, NO statutory contstruction, NO anything to support his statement. > Here's why: the disk and title keys are not stored as plaintext on > the disk. So to acquire a disk key you need a player key. And you > need that disk key to get the title keys. So, until you acquire a > player key you've got nothing. Note that DeCSS does not distribute disc or title keys. > However, I still think it's an extreme point of view, because of > the word "lawfully". He seems to bestow some magical protection on > the keys themselves. His statement implies that just FINDING > THE PLAYER KEY by reverse engineering is unlawful, even if > one doesn't go and distribute a "circumvention device" that > offends some large copyright industry group. > What law would digging for player keys offend? EXACTLY. Kaplan doesn't say. __________________________________________________ Do You Yahoo!? Yahoo! Mail – Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 22 12:39:26 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA02574 for dvd-discuss-outgoing; Tue, 22 Aug 2000 12:39:26 -0400 Received: from mail.glenatl.glenayre.com (mail.glenatl.glenayre.com [157.230.160.51]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id MAA02570 for ; Tue, 22 Aug 2000 12:39:20 -0400 Received: from mindspring.com (mmcgown.glenatl.glenayre.com [157.230.162.136]) by mail.glenatl.glenayre.com (8.10.1/8.10.1) with ESMTP id e7MGcrX23693 for ; Tue, 22 Aug 2000 12:38:53 -0400 (EDT) Message-ID: <39A2ACB9.3334E716@mindspring.com> Date: Tue, 22 Aug 2000 12:39:21 -0400 From: mickeym X-Mailer: Mozilla 4.61 [en] (WinNT; I) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] more errors in Kaplan's Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > --- Eric Seppanen wrote: > > On Mon, Aug 21, 2000 at 09:16:23PM -0400, Harold Eaton wrote: > > > (quoting Kaplan) Pg 32 > > > K>One cannot gain access to a CSS-protected work on a DVD > > > K>without application of the three keys that are required by > > > K>the software. One cannot lawfully gain access to the keys > > > K> except by entering into a license with the DVD CCA > > > K>under authority granted by the copyright owner or by purchasing > > > K>a DVD player or drive containing the keys pursuant to such a > > > K>license. > > > That's not technically what he's claiming. He's saying you can't > > "lawfully gain access" to the three keys without a DVDCCA license. > > Ignoring the word "lawfully", and assuming you use the normal CSS > > algorithms and not any of Frank Stevenson's shortcuts, his statement > > is sorta true. > > Kaplan is really out on a limb here. Kaplan has invented a new form of > intellectual property with no grounding in reality. Even the part of > the DMCA that forbids access to protected copyrighted "works" isn't > effective yet, not that this would protect a key. Even when it goes > into effect, 1201(a)(1) clearly allows reverse engineering to identify > parts of the program needed for interoperability, which can really only > mean the encryption keys (how could it not include this?). > > Moreover, the Xing key WAS NOT PROTECTED by a TPM!! > Yes, it was. There is the "I Agree" to not reverse-engineer license agreement. That is the basis of "improperly appropriated" claim in the CA case. mickeym From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 22 12:57:09 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA03166 for dvd-discuss-outgoing; Tue, 22 Aug 2000 12:57:09 -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 MAA03163 for ; Tue, 22 Aug 2000 12:57:08 -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 LAA16746 for ; Tue, 22 Aug 2000 11:57:16 -0500 (CDT) Message-ID: <39A2B16A.21396553@uic.edu> Date: Tue, 22 Aug 2000 11:59:23 -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] OpenCSS - A new open standard for content protection Content-Type: text/plain; charset=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've been out of town for a few days, and I wanted to follow up on my posting. Basically, it comes down to this. The MPAA argued that their DVDs are protected by CSS. However, Judge Kaplan specifically identified the inclusion of the player keys as the reason why he considers DeCSS to be a circumvention device: > One cannot gain access to a CSS-protected work on > a DVD without application of the three keys that are > required by the software. One cannot lawfully gain > access to the keys except by entering into a license > with the DVD CCA under authority granted by the > copyright owners or by purchasing a DVD player or > drive containing the keys pursuant to such a license. > In consequence, under the express terms of the statute, > CSS effectively controls access to copyrighted DVD > movies. It does so, within the meaning of the statute, > whether or not it is a strong means of protection. This is very interesting, because a player key is only 40 bits, and can be easily transformed into an 8 byte alphanumeric password. Here are a few possible player keys: a93u4mdi 73hf83y2 jehw8rl3 The key to my proposal is the realization that the CSS algorithm itself is unpatented, and only becomes a circumvention device when supplied with one of the trade-secret protected DVD-CAA supplied player keys. This allows one to "compress" the trade secret aspect of DeCSS down to 40 bits -- an 8 byte password. The rest of DeCSS, without that critical player key, does not provide access to MPAA copyrighted works, and should therefore not fall under the provisions of the DMCA. My proposal -- call it OpenCSS, is a new open standard for DVD encryption. OpenCSS is functionally identical to CSS, with one exception. Instead of a "player key", which serves the purpose of verifying the integrity of the player under the CSS system, there is a new concept of an "authority key", which instead, conveys authority to access a specific DVD, or set of DVDs that share the same authority key. Thus, an OpenCSS player provides a method for the user to type in the 8 character alphanumeric player key that matches the disk he wants to access. OpenCSS is basically "using up" the "negative space" of player keys that are not used by the DVD-CAA -- a valuable unexploited resource that could be used by individual publishers to individually and uniquely protect billions of unique copyrighted works, all without ever providing access to even one CSS protected work. QUESTION: Why should OpenCSS be functionally identical with CSS. If you were truly interested in creating a better security system, why wouldn't you use a better encryption technique? ANSWER #1: CSS is a de-facto hardware and software standard. Just as anyone who wishes to write a new computer operating system faces two choices -- create your own hardware -- a multi-million dollar option -- or use existing commodity hardware -- a zero-dollar option. In short, OpenCSS uses the CSS algorithm because that's the only algorithm guaranteed to be supported by all existing DVD hardware. It's what the hardware was designed to use. ANSWER #2: The courts have determined that even though CSS doesn't actually protect data, under the DMCA, it is considered an "effective" access control measure. If it's good enough for the MPAA to protect their works, then surely it's good enough for the general public to protect their works also. QUESTION: How would users benefit from an OpenCSS based DVD player? ANSWER: OpenCSS based DVD players come with no Macrovision requirement and no restrictions on data export for fair use purposes. Therefore, they provide additional functionality not present in CSS based DVD players. We expect that these better features will help OpenCSS win market share over CSS based DVD players. QUESTION: How does a content provider use OpenCSS to sell access to a work? Under OpenCSS, the publisher of a work chooses the authority key in any manner he chooses and encodes the disk himself with that authority key. The publisher may then freely distribute the DVD, and sell the "authority key", perhaps on the internet. QUESTION: Isn't this just a way of twisting things around so that you can publish CSS? ANSWER: The legal problem with DeCSS was that it contained a player key, and therefore provided access to MPAA copyrighted works. The DMCA only controls devices that provide access to copyrighted works without the permission of the copyright holder. Since OpenCSS compliant systems do not require a player key, and are manufactured and shipped with no keys at all. they are incapable of playing a CSS protected DVD without the end user providing one of the DVD-CAA assigned player keys; which might possibly be illegal. QUESTION: What's to stop someone from typing one of the DVD-CAA player keys into an OpenCSS based DVD, and creating a circumvention device? ANSWER: The DVD-CAA player keys are trade secrets and have not been disclosed by the DVD-CAA. If the MPAA believes that by spending millions of dollars on lawyers, they can successfully suppress the dissemination of the player keys, who are we to argue? We will let them do their job, while we do our job -- the creation of a better alternative to the customer-unfriendly CSS system that uses legal and technological methods to thwart fair use. From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 22 13:20:45 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA03402 for dvd-discuss-outgoing; Tue, 22 Aug 2000 13:20:45 -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 NAA03399 for ; Tue, 22 Aug 2000 13:20:43 -0400 Received: (from eds@localhost) by thud.reric.net (8.9.3/8.8.7) id MAA30310 for dvd-discuss@eon.law.harvard.edu; Tue, 22 Aug 2000 12:20:49 -0500 Date: Tue, 22 Aug 2000 12:20:49 -0500 From: Eric Seppanen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] OpenCSS - A new open standard for content protection Message-ID: <20000822122049.A30277@thud.reric.net> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <39A2B16A.21396553@uic.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1us In-Reply-To: <39A2B16A.21396553@uic.edu>; from jms@uic.edu on Tue, Aug 22, 2000 at 11:59:23AM -0500 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, Aug 22, 2000 at 11:59:23AM -0500, John Schulien wrote: > My proposal -- call it OpenCSS, is a new > open standard for DVD encryption. > ANSWER: The DVD-CAA player keys are trade > secrets and have not been disclosed by the > DVD-CAA. Easier answer: DVDCCA player keys are no longer trade secrets once fairly and legally reverse-engineered. Since there is no other protection of player keys (no copyright, no patent), there should be no legal problem with distributing player keys that were once distributed by DVDCCA. Hopefully DVDCCA v. McLaughlin, et al. will demonstrate this soon :) Eric From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 22 13:20:33 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA03394 for dvd-discuss-outgoing; Tue, 22 Aug 2000 13:20:33 -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 NAA03390 for ; Tue, 22 Aug 2000 13:20:28 -0400 Received: from mit.edu (h0050da62b39d.ne.mediaone.net [24.147.217.121]) by chmls05.mediaone.net (8.8.7/8.8.7) with ESMTP id NAA09668; Tue, 22 Aug 2000 13:20:31 -0400 (EDT) Message-ID: <39A2B6D4.EE2BA70A@mit.edu> Date: Tue, 22 Aug 2000 13:22:28 -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] OpenCSS - A new open standard for content protection References: <39A2B16A.21396553@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: > > I've been out of town for a few days, and I wanted to > follow up on my posting. > > Basically, it comes down to this. The MPAA argued > that their DVDs are protected by CSS. However, > Judge Kaplan specifically identified the inclusion of > the player keys as the reason why he considers > DeCSS to be a circumvention device: > > > One cannot gain access to a CSS-protected work on > > a DVD without application of the three keys that are > > required by the software. One cannot lawfully gain > > access to the keys except by entering into a license > > with the DVD CCA under authority granted by the > > copyright owners or by purchasing a DVD player or > > drive containing the keys pursuant to such a license. > > In consequence, under the express terms of the statute, > > CSS effectively controls access to copyrighted DVD > > movies. It does so, within the meaning of the statute, > > whether or not it is a strong means of protection. > > This is very interesting, because a player key is only > 40 bits, and can be easily transformed into an 8 byte > alphanumeric password. Here are a few possible > player keys: > > a93u4mdi 73hf83y2 jehw8rl3 > > The key to my proposal is the realization that the > CSS algorithm itself is unpatented, and only becomes > a circumvention device when supplied with one of > the trade-secret protected DVD-CAA supplied > player keys. > > This allows one to "compress" the trade secret > aspect of DeCSS down to 40 bits -- an 8 byte > password. The rest of DeCSS, without that critical > player key, does not provide access to MPAA > copyrighted works, and should therefore not fall > under the provisions of the DMCA. > > My proposal -- call it OpenCSS, is a new > open standard for DVD encryption. > > OpenCSS is functionally identical to CSS, with one > exception. Instead of a "player key", which serves > the purpose of verifying the integrity of the player > under the CSS system, there is a new concept of > an "authority key", which instead, conveys authority > to access a specific DVD, or set of DVDs that share > the same authority key. > > Thus, an OpenCSS player provides a method for > the user to type in the 8 character alphanumeric > player key that matches the disk he wants to access. > > OpenCSS is basically "using up" the "negative space" > of player keys that are not used by the DVD-CAA -- > a valuable unexploited resource that could be used > by individual publishers to individually and uniquely > protect billions of unique copyrighted works, all > without ever providing access to even one CSS > protected work. > > QUESTION: Why should OpenCSS be > functionally identical with CSS. If you were truly > interested in creating a better security system, > why wouldn't you use a better encryption technique? > > ANSWER #1: CSS is a de-facto hardware and > software standard. Just as anyone who wishes to > write a new computer operating system faces two > choices -- create your own hardware -- a > multi-million dollar option -- or use existing > commodity hardware -- a zero-dollar option. > > In short, OpenCSS uses the CSS algorithm because > that's the only algorithm guaranteed to be supported > by all existing DVD hardware. It's what the hardware > was designed to use. Just to strengthen some of this. Software players are completely upgradeable and hardware players are often firmware-upgradeable. By minimizing the implementation work needed to support OpenCSS (no new encryption algorithm), OpenCSS has a better chance of becoming a widely used standard. Also, this makes it easy for content producers who wish to support OpenCSS and CSS on the same DVD --- just add an OpenCSS "authority key" to the existing CSS player keys. If there isn't space, I'm sure they can decide not to use the revoked Xing key. Other copyright owners may choose (depending on the legal agreements they have made) to use player keys that the DVD CCA reserved for future expansion as OpenCSS "authority keys". > ANSWER #2: The courts have determined that even > though CSS doesn't actually protect data, under the > DMCA, it is considered an "effective" access control > measure. If it's good enough for the MPAA to protect > their works, then surely it's good enough for the general > public to protect their works also. > > QUESTION: How would users benefit from an > OpenCSS based DVD player? > > ANSWER: OpenCSS based DVD players come with > no Macrovision requirement and no restrictions on > data export for fair use purposes. Therefore, they > provide additional functionality not present in CSS > based DVD players. We expect that these better > features will help OpenCSS win market share over > CSS based DVD players. Also, OpenCSS players will not be region-coded, though region coding of the underlying drive may limit the benefit of this. > QUESTION: How does a content provider use > OpenCSS to sell access to a work? > > Under OpenCSS, the publisher of a work chooses > the authority key in any manner he chooses and > encodes the disk himself with that authority key. > The publisher may then freely distribute the DVD, > and sell the "authority key", perhaps on the internet. I think an "authority key" should be just like a CSS player key (i.e. it is used to access the disk key the work is actually encrypted with). > QUESTION: Isn't this just a way of twisting things > around so that you can publish CSS? > > ANSWER: The legal problem with DeCSS was that > it contained a player key, and therefore provided > access to MPAA copyrighted works. The DMCA > only controls devices that provide access to > copyrighted works without the permission of the > copyright holder. Since OpenCSS > compliant systems do not require a player key, > and are manufactured and shipped with no keys > at all. they are incapable of playing a CSS > protected DVD without the end user providing one > of the DVD-CAA assigned player keys; which > might possibly be illegal. > > QUESTION: What's to stop someone from > typing one of the DVD-CAA player keys > into an OpenCSS based DVD, and creating > a circumvention device? > > ANSWER: The DVD-CAA player keys are trade > secrets and have not been disclosed by the > DVD-CAA. If the MPAA believes that by spending > millions of dollars on lawyers, they can successfully > suppress the dissemination of the player keys, who > are we to argue? We will let them do their job, while > we do our job -- the creation of a better alternative to > the customer-unfriendly CSS system that uses > legal and technological methods to thwart fair use. From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 22 13:54:48 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA03741 for dvd-discuss-outgoing; Tue, 22 Aug 2000 13:54:48 -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 NAA03738 for ; Tue, 22 Aug 2000 13:54:43 -0400 Message-ID: <20000822175414.28887.qmail@web511.mail.yahoo.com> Received: from [131.44.121.4] by web511.mail.yahoo.com; Tue, 22 Aug 2000 10:54:14 PDT Date: Tue, 22 Aug 2000 10:54:14 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] more errors in Kaplan's To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --- mickeym wrote: > Yes, it was. There is the "I Agree" to not reverse-engineer > license agreement. > > That is the basis of "improperly appropriated" claim in the CA case. TPM = "technological protection measure" per the DMCA. That is, an encryption/scrambling system. A clickwrap agreement doesn't qualify. As for the "I Agree": "Bestemmelsene i denne paragraf kan ikke fravikes ved avtale." See item 12: http://www.eff.org/pub/Intellectual_property/DVDCCA_case/20000118_bing_norway_law_decl.html Also, where is the evidence that "I agree" was clicked by the person who did the reverse engineering? __________________________________________________ Do You Yahoo!? Yahoo! Mail – Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 22 14:03:05 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA03901 for dvd-discuss-outgoing; Tue, 22 Aug 2000 14:03:05 -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 OAA03898 for ; Tue, 22 Aug 2000 14:03:04 -0400 Received: from ip97.bedford3.ma.pub-ip.psi.net ([38.32.11.97]) by relay20.smtp.psi.net with smtp (Exim 3.13 #3) id 13RIOF-0003CT-00 for dvd-discuss@eon.law.harvard.edu; Tue, 22 Aug 2000 14:03:11 -0400 From: Ron Gustavson To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] OpenCSS - A new open standard for content protection Date: Tue, 22 Aug 2000 13:56:46 -0400 Message-ID: <52e5qs8fr6n9ugqafdh9213e1vsn1qq779@4ax.com> References: <39A2B16A.21396553@uic.edu> <39A2B6D4.EE2BA70A@mit.edu> In-Reply-To: <39A2B6D4.EE2BA70A@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 OAA03899 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, 22 Aug 2000 13:22:28 -0400, Ravi Nanavati wrote: >John Schulien wrote: Nice framework! (This is a better description of what I was trying to inspire.) >> The key to my proposal is the realization that the >> CSS algorithm itself is unpatented, and only becomes >> a circumvention device when supplied with one of >> the trade-secret protected DVD-CAA supplied >> player keys. Just what _is_ patented--only the process? Otherwise, sounds good. >> >> My proposal -- call it OpenCSS, is a new >> open standard for DVD encryption. >> ANSWER #1: CSS is a de-facto hardware and >> software standard. Just as anyone who wishes to >> write a new computer operating system faces two >> choices -- create your own hardware -- a >> multi-million dollar option -- or use existing >> commodity hardware -- a zero-dollar option. >> In short, OpenCSS uses the CSS algorithm because >> that's the only algorithm guaranteed to be supported >> by all existing DVD hardware. It's what the hardware >> was designed to use. >I'm sure they can decide not to use the revoked >Xing key. Other copyright owners may choose >(depending on the legal agreements they have made) >to use player keys that the DVD CCA reserved for >future expansion as OpenCSS "authority keys". note: Because existing player keys are secret, we can't know if they are or aren't player keys as well. And because the OpenCSS player will come without any keys, the MPA can have no objection. (I would avoid any RE'd or known player keys to start with, although these shouldn't necessarily be reserved as they are supposed to be secret.) >> QUESTION: How does a content provider use >> OpenCSS to sell access to a work? >> >> Under OpenCSS, the publisher of a work chooses >> the authority key in any manner he chooses and >> encodes the disk himself with that authority key. >> The publisher may then freely distribute the DVD, >> and sell the "authority key", perhaps on the internet. > >I think an "authority key" should be just like a >CSS player key (i.e. it is used to access the disk key >the work is actually encrypted with). Of course, just as with a new key for LiViD, the problem is getting the authority key on the disc. We really have to sell the idea first in order to lure some fringe replicator or pirate to press what we want. After this, one hot title could change the industry. Hmmm, what was Larry Flynt's number? Probably should get this proposal over to C-Cube. __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 22 14:26:52 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA04653 for dvd-discuss-outgoing; Tue, 22 Aug 2000 14:26:52 -0400 Received: from mail.lemuria.org (lemuria.borgfelde.ricardo.de [195.244.103.65]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id OAA04650 for ; Tue, 22 Aug 2000 14:26:51 -0400 Received: from lemuria.org by mail.lemuria.org via rsmtp with bsmtp id for ; Tue, 22 Aug 2000 20:15:30 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Received: by lemuria.org via sendmail with stdio id for dvd-discuss@eon.law.harvard.edu; Tue, 22 Aug 2000 20:03:42 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Date: Tue, 22 Aug 2000 20:03:41 +0200 From: Tom Vogt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Region coding. Message-ID: <20000822200341.A25409@lemuria.org> References: <399EAAF6.7C36DD9D@mediaone.net> <00081909095102.27658@frankenstein.lumbercartel.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0pre3i In-Reply-To: X-Privacy: If you can, please encrypt your mails - finger for key Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu "Arnold G. Reinhold" wrote: > DMCA could *deny* you the means to view it. Right now DVD players > decide what region the will decode based on the first DVD disks > actually played. Suppose the industry changes that and simply sells > Region 1 players in Region 1, Region 2 players in Region 2, etc. > Importing a Region 2 player into Region 1 would then arguably violate > 1201b and using it would violate 1201a. sticking to region coding: most dvd drives/players allow you to change the region code a limited number of times (usually 5). is that a circumvention already? is doing it a 6th time (by whatever means) circumvention? -- "The net treats censorship as a malfunction and re-routes around it." (John Gilmore) From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 22 14:40:41 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA04787 for dvd-discuss-outgoing; Tue, 22 Aug 2000 14:40:41 -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 OAA04784 for ; Tue, 22 Aug 2000 14:40:40 -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 LAA22163 for ; Tue, 22 Aug 2000 11:40:30 -0700 Received: (from daw@localhost) by blowfish.isaac.cs.berkeley.edu (8.8.7/8.8.7) id LAA22760; Tue, 22 Aug 2000 11:40:36 -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] code as speech Date: 22 Aug 2000 11:40:25 -0700 Organization: A poorly-installed InterNetNews site Lines: 7 Distribution: isaac Message-ID: <8nuhep$m77$1@blowfish.isaac.cs.berkeley.edu> References: <200008211641.MAA32633@samsara.law.cwru.edu> <20000821111238.Z5992@zork.net> <20000821202732.A5496@inka.de> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Sham Gardner wrote: > (4) CSS is 40 bit crypto which can be exported? I do not think this necessarily saves you from violation of the export controls. Even if we consider back when 40 limits was a relevant limit, my understanding is that one still was required to apply for an export license, and receive approval, even for 40-bit crypto. From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 22 14:47:09 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA04884 for dvd-discuss-outgoing; Tue, 22 Aug 2000 14:47:09 -0400 Received: from mail.lemuria.org (lemuria.borgfelde.ricardo.de [195.244.103.65]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id OAA04881 for ; Tue, 22 Aug 2000 14:47:07 -0400 Received: from lemuria.org by mail.lemuria.org via rsmtp with bsmtp id for ; Tue, 22 Aug 2000 20:41:23 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Received: by lemuria.org via sendmail with stdio id for dvd-discuss@eon.law.harvard.edu; Tue, 22 Aug 2000 20:24:00 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Date: Tue, 22 Aug 2000 20:24:00 +0200 From: Tom Vogt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] more errors in Kaplan's Message-ID: <20000822202400.B25541@lemuria.org> References: <39A2ACB9.3334E716@mindspring.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0pre3i In-Reply-To: <39A2ACB9.3334E716@mindspring.com> X-Privacy: If you can, please encrypt your mails - finger for key Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu mickeym wrote: > Yes, it was. There is the "I Agree" to not reverse-engineer license > agreement. > > That is the basis of "improperly appropriated" claim in the CA case. which is unproven to be effective. I by now know that your legal system is more than a little insane, but have you also done away with "innocent until proven guilty" ? it seems so. dvd cca doesn't have to prove that I'm under california jurisdiction. they just assume it and leave it to me to send a lawyer of my own in to prove the opposite. is the same true for ASSUMPTIONS like the "improperly acquired" of the xing key? shouldn't the burden of proof be on the plaintiffs? -- "The net treats censorship as a malfunction and re-routes around it." (John Gilmore) From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 22 14:47:22 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA04892 for dvd-discuss-outgoing; Tue, 22 Aug 2000 14:47:22 -0400 Received: from mail.lemuria.org (lemuria.borgfelde.ricardo.de [195.244.103.65]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id OAA04889 for ; Tue, 22 Aug 2000 14:47:20 -0400 Received: from lemuria.org by mail.lemuria.org via rsmtp with bsmtp id for ; Tue, 22 Aug 2000 20:41:23 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Received: by lemuria.org via sendmail with stdio id for dvd-discuss@eon.law.harvard.edu; Tue, 22 Aug 2000 20:28:59 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Date: Tue, 22 Aug 2000 20:28:59 +0200 From: Tom Vogt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] OpenCSS - A new open standard for content protection Message-ID: <20000822202859.C25541@lemuria.org> References: <39A2B16A.21396553@uic.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0pre3i In-Reply-To: <39A2B16A.21396553@uic.edu> X-Privacy: If you can, please encrypt your mails - finger for key Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu John Schulien wrote: > This is very interesting, because a player key is only > 40 bits, and can be easily transformed into an 8 byte 5 byte actually. only when you use unix-style passwords (64 allowed characters) you get a "byte" to have 6 bits. which would give 7-byte passwords. so the stuff is actually much WEAKER than your examples. 7 bytes are well within the realm of brute-force attacks on modern hardware, even without any of the shortcuts of frank. -- "The net treats censorship as a malfunction and re-routes around it." (John Gilmore) From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 22 14:47:07 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA04876 for dvd-discuss-outgoing; Tue, 22 Aug 2000 14:47:07 -0400 Received: from mail.lemuria.org (lemuria.borgfelde.ricardo.de [195.244.103.65]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id OAA04873 for ; Tue, 22 Aug 2000 14:47:04 -0400 Received: from lemuria.org by mail.lemuria.org via rsmtp with bsmtp id for ; Tue, 22 Aug 2000 20:41:23 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Received: by lemuria.org via sendmail with stdio id for dvd-discuss@eon.law.harvard.edu; Tue, 22 Aug 2000 20:20:20 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Date: Tue, 22 Aug 2000 20:20:20 +0200 From: Tom Vogt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Re: [untitled] Message-ID: <20000822202020.A25541@lemuria.org> References: <20000822154335.502.qmail@web514.mail.yahoo.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0pre3i In-Reply-To: <20000822154335.502.qmail@web514.mail.yahoo.com> X-Privacy: If you can, please encrypt your mails - finger for key Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Bryan Taylor wrote: > Johansen, supported by Pavlovich, offered a very reasonable programming > explaination for his actions. Kaplan recognized it, dismissed it as > unimportant, and read into the law a requirement that to create > interoperability, you must operate on the OS you interoperate with. which is also factually wrong. for example, I'm fairly sure that samba could not have been done without using several windows systems to analyze the protocol. -- "The net treats censorship as a malfunction and re-routes around it." (John Gilmore) From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 22 14:51:00 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA05008 for dvd-discuss-outgoing; Tue, 22 Aug 2000 14:51:00 -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 OAA05005 for ; Tue, 22 Aug 2000 14:50:59 -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 LAA22229 for ; Tue, 22 Aug 2000 11:50:50 -0700 Received: (from daw@localhost) by blowfish.isaac.cs.berkeley.edu (8.8.7/8.8.7) id LAA22783; Tue, 22 Aug 2000 11:50:55 -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] 40-bit encryption (Was Re: code as speech) Date: 22 Aug 2000 11:50:45 -0700 Organization: A poorly-installed InterNetNews site Lines: 24 Distribution: isaac Message-ID: <8nui25$m7u$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 Arnold G. Reinhold wrote: > I believe strong encryption was feasible and affordable in this > application even way back in 1996. And I think there were signals > from BXA that stronger encryption would be approved in narrow > applications like CSS. I still wonder why they produced such a week > product. Yes, me too, but in some sense, the 40-bit keylength is really a distraction. I would argue that the most significant weaknesses of CSS are the following two: - The CSS stream cipher is an abysmally poor piece of cryptographic design, really shoddy workmanship. (The result is that Stevenson found an attack that reduces its effective keylength to something like 16 bits. That's shockingly bad, for a modern cipher.) - And anyway, even the strongest crypto algorithm would not help; the notion that crypto can prevent copying is a mirage, an illusion, tempting, appealing, but utterly wrong. This should not be a surprise to anyone who took part in the `software copy protection' battles in the 80's, or to anyone with a strong background in computer security. Yes, choosing a 40-bit keylength sure does sound like a sub-optimal decision. But, in my opinion, the two issues above matter far more. From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 22 14:52:07 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA05058 for dvd-discuss-outgoing; Tue, 22 Aug 2000 14:52:07 -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 OAA05053 for ; Tue, 22 Aug 2000 14:52:05 -0400 Message-ID: <20000822185138.4758.qmail@web513.mail.yahoo.com> Received: from [131.44.121.4] by web513.mail.yahoo.com; Tue, 22 Aug 2000 11:51:38 PDT Date: Tue, 22 Aug 2000 11:51:38 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] OpenCSS - A new open standard for content protection To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-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 like the train of thought here. It corrects the design problem with DeCSS: it was completely unnecessary to hard-code the player key in the application. In fact, by examining & generalization of the cryptosystem used, I bet you could avoid hard-coding all aspects of the encryption/decryption algorithm. I think some things can be done to remove any legal problems that might arise: 1) Allow a more generalized key-length / encryption algorithm 2) Change the name. OpenLFSR might be better LFSR stands for linear feedback shrift register, if I recall correctly. Frank Stevenson describes how CSS is implemented using 2 summed LFSR's and a mangling function. All of these can be easily generalized, and probably reduced to short strings as well to define a cryptosystem configuration. Basically openlfsr should do the following: 1) Accept a configuration file defining the LSFR's used and mangling 2) Key management: generation, storage, retrieval of keys 3) Encrypt and decrypt data The program could take four arguments: cryptosystem config file, keyfile, cleartext file, ciphertext file, with options to encrypt or decrypt. Such a program should obviously qualify for the encryption research exception,and might even be an important contribution to the encryption community. It also raises amusing problems for the law: Consider doing using the Xing key but a different LFSR based cryptosystem. Is this illegal under the DMCA? Why? How about one that rot13's to the Xing key? What about using the CSS cryptosystem with non derivitive keys? If you use this can you distribute the OpenLSFR config file? Of course, if two separate people distribute each of those noncircumventing devices separately ... __________________________________________________ Do You Yahoo!? Yahoo! Mail – Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 22 14:55:59 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA05145 for dvd-discuss-outgoing; Tue, 22 Aug 2000 14:55:59 -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 OAA05142 for ; Tue, 22 Aug 2000 14:55:58 -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 LAA22278 for ; Tue, 22 Aug 2000 11:55:49 -0700 Received: (from daw@localhost) by blowfish.isaac.cs.berkeley.edu (8.8.7/8.8.7) id LAA22824; Tue, 22 Aug 2000 11:55:54 -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] more errors in Kaplan's Date: 22 Aug 2000 11:54:46 -0700 Organization: A poorly-installed InterNetNews site Lines: 8 Distribution: isaac Message-ID: <8nui9m$m97$1@blowfish.isaac.cs.berkeley.edu> References: <20000822175414.28887.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 wrote: > TPM = "technological protection measure" per the DMCA. That is, an > encryption/scrambling system. A clickwrap agreement doesn't qualify. Can you cite the basis for this? For some reason, my impression of the DMCA was that scrambling is not a required part of a TPM; it was just an example of what a TPM might look like. I would love to be wrong on this point! From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 22 15:23:11 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA05624 for dvd-discuss-outgoing; Tue, 22 Aug 2000 15:23:11 -0400 Received: from dial167.roadrunner.com (sf-du167.cybermesa.com [209.12.75.167]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA05621 for ; Tue, 22 Aug 2000 15:23:09 -0400 Received: (from paul@localhost) by dial167.roadrunner.com (8.8.7/8.8.7) id NAA01370 for dvd-discuss@eon.law.harvard.edu; Tue, 22 Aug 2000 13:24:38 -0600 Date: Tue, 22 Aug 2000 13:24:37 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] OpenCSS - A new open standard for content protection Message-ID: <20000822132437.B619@localhost> References: <20000822185138.4758.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: <20000822185138.4758.qmail@web513.mail.yahoo.com>; from bryan_w_taylor@yahoo.com on Tue, Aug 22, 2000 at 11:51:38AM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu One tweak to your suggestion: On Tue, Aug 22, 2000 at 11:51:38AM -0700, Bryan Taylor wrote: [ ... ] > Basically openlfsr should do the following: > > 1) Accept a configuration file defining the LSFR's used and mangling > 2) Key management: generation, storage, retrieval of keys > 3) Encrypt and decrypt data 4) A call-interface that performs hashes. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 22 15:29:23 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA05799 for dvd-discuss-outgoing; Tue, 22 Aug 2000 15:29:23 -0400 Received: from dial167.roadrunner.com (sf-du167.cybermesa.com [209.12.75.167]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA05796 for ; Tue, 22 Aug 2000 15:29:20 -0400 Received: (from paul@localhost) by dial167.roadrunner.com (8.8.7/8.8.7) id NAA01378 for dvd-discuss@eon.law.harvard.edu; Tue, 22 Aug 2000 13:30:56 -0600 Date: Tue, 22 Aug 2000 13:30:55 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] more errors in Kaplan's Message-ID: <20000822133055.C619@localhost> References: <39A2ACB9.3334E716@mindspring.com> <20000822202400.B25541@lemuria.org> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <20000822202400.B25541@lemuria.org>; from tom@lemuria.org on Tue, Aug 22, 2000 at 08:24:00PM +0200 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, Aug 22, 2000 at 08:24:00PM +0200, Tom Vogt wrote: > mickeym wrote: > > Yes, it was. There is the "I Agree" to not reverse-engineer license > > agreement. > > > > That is the basis of "improperly appropriated" claim in the CA case. > > which is unproven to be effective. I by now know that your legal system is > more than a little insane, but have you also done away with "innocent until > proven guilty" ? Yup. My understanding is that in a civil proceeding the standard is "perponderance of evidence". There may be exceptions, but so far as I know there is no assumption for or against defendant's liability in a civil trial. (Funny name that --- "civil". How the meaning of words change.) Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 22 15:36:21 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA05866 for dvd-discuss-outgoing; Tue, 22 Aug 2000 15:36:21 -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 PAA05863 for ; Tue, 22 Aug 2000 15:36:19 -0400 Message-ID: <20000822193556.24514.qmail@web515.mail.yahoo.com> Received: from [131.44.121.4] by web515.mail.yahoo.com; Tue, 22 Aug 2000 12:35:56 PDT Date: Tue, 22 Aug 2000 12:35:56 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] more errors in Kaplan's To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-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: > Bryan Taylor wrote: > > TPM = "technological protection measure" per the DMCA. That is, an > > encryption/scrambling system. A clickwrap agreement doesn't > qualify. > > Can you cite the basis for this? For some reason, my impression of > the DMCA was that scrambling is not a required part of a TPM; it > was just an example of what a TPM might look like. I would love > to be wrong on this point! To qualify as a TPM a measure has to require application of information with the authority of the copyright holder to gain access to the work. Perhaps there are other methods besides cyrptography for doing that, but I don't know any. Nevertheless, I don't see any way to assert that clicking "I agree" (in Norway, no less) meets the definition at all. Clickwrap agreements purport to be contracts, not access controls. God help us otherwise. __________________________________________________ Do You Yahoo!? Yahoo! Mail – Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 22 15:46:57 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA06038 for dvd-discuss-outgoing; Tue, 22 Aug 2000 15:46:57 -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 PAA06035 for ; Tue, 22 Aug 2000 15:46:56 -0400 Received: from schoen by zork.zork.net with local (Exim 3.12 #1 (Debian)) id 13RK0h-0002gH-00; Tue, 22 Aug 2000 12:46:59 -0700 Date: Tue, 22 Aug 2000 12:46:59 -0700 From: Seth David Schoen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] code as speech Message-ID: <20000822124659.K235@zork.net> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <200008211641.MAA32633@samsara.law.cwru.edu> <20000821111238.Z5992@zork.net> <20000821202732.A5496@inka.de> <8nuhep$m77$1@blowfish.isaac.cs.berkeley.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0.1i In-Reply-To: <8nuhep$m77$1@blowfish.isaac.cs.berkeley.edu>; from daw@cs.berkeley.edu on Tue, Aug 22, 2000 at 11:40:25AM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu David A. Wagner writes: > Sham Gardner wrote: > > (4) CSS is 40 bit crypto which can be exported? > > I do not think this necessarily saves you from violation of the export > controls. Even if we consider back when 40 limits was a relevant limit, > my understanding is that one still was required to apply for an export > license, and receive approval, even for 40-bit crypto. Conversely, it's odd that people haven't challenged the claim that MEI and Toshiba had no choice but to use a 40-bit cryptosystem because anything stronger was not exportable. The export control folks were willing to grant export licenses for cryptography for copy protection, so long as it was not useful for confidentiality. The famous "40-bit limit" was a sort of default for particular kinds of cryptosystems in particular circumstances. I'm sure the BXA won't speculate, but I'm sure an export license would have been granted for a stronger CSS. I should make a FOIA request for cases in which export licenses were granted for copy protection systems since Commerce jurisdiction (and Commerce policy on export of encryption for applications of that sort as of the invention of CSS). Are BXA license decisions a matter of public record? Far be it from me to defend the administrations export controls -- but I think they've been used as a mere after-the-fact rationalization or the use of such a weak system. As you and Bruce Schneier keep telling everyone, a "stronger" system wouldn't have been any stronger if implemented in published software. All future software CP will be defeated until debuggers are illegal. -- 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 Aug 22 15:49:02 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA06121 for dvd-discuss-outgoing; Tue, 22 Aug 2000 15:49:02 -0400 Received: from world.std.com (root@world-f.std.com [199.172.62.5]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA06118 for ; Tue, 22 Aug 2000 15:48:57 -0400 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 PAA11288 for ; Tue, 22 Aug 2000 15:21:36 -0400 (EDT) Mime-Version: 1.0 Message-Id: In-Reply-To: <20000821190805.16200.qmail@web512.mail.yahoo.com> References: <20000821190805.16200.qmail@web512.mail.yahoo.com> Date: Tue, 22 Aug 2000 15:21:25 -0400 To: dvd-discuss@eon.law.harvard.edu From: "Arnold G. Reinhold" Subject: [dvd-discuss] Freedom of the press 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 lot of the discussion here has focused on speech issues, but there is also a First Amendment right to freedom of the press. No one disputes that 2600.com is a member of the press. Freedom of speech and freedom of the press are closely related under US Constitutional law, but they are not identical, and press freedoms are arguable broader and more jealously protected. For example, has U.S. v. O'Brien, which is at the heart of Judge Kaplan's ruling, ever been applied to the press? If not, its application here is certainly novel and chilling. Kaplan employs defamation law to justify his ban on linking. It is true that the Supreme Court has not entirely eliminated defamation law's applicability to the press, even though it has sharply limited its use. But defamation law is consistent to some degree with the goal of press freedom. Defamation law only restricts false information. In US law truth is an absolute defense. Another example where the press enjoys stronger freedom is in the law of prior restraint. Kaplan shows little respect for the Supreme Court's pronouncements on prior restraint, saying "... there is a significant gap between rhetoric and reality." (p.64). The examples he cites to show this gap (footnotes 319 and 320) do not deal with the core mission of the press: the public's right to know. One case restricts casino advertising, but that falls under the less protected category of commercial speech. A news story telling where casinos are located would undoubtedly be protected. Another deals with use of copyrighted material in a biography. Much as I disagree with that decision, it still allows a biographer to express his ideas. Similarly the ban on using trademarks in a film has only a minor impact on the director's ability to express his ideas. (Kaplan's citation of Times Film vs Chicago is puzzling since it was decided in 1961, well before the key prior restraint cases.) None of the cases Kaplan's cites prevent the press from presenting truthful, original material to the public. DCMA, as Kaplan interprets it, would create a category of information that is simply banned. The press cannot print it and it cannot even tell the public where else it may be found. The one other body of law I can think of that attempts to ban the publication of information is the espionage laws, 18 USC 793, 794. Even these laws have come under the prior restraint doctrine. Kaplan of course mentions New York Times Co. vs. The United States, but he says it "dealt with an attempt to enjoin a newspaper from publishing an internal government history of the Vietnam war." (p. 66) He neglects to mention the documents in question were classified "Top Secret." Executive Order 10501 specifies: "The Top Secret classification shall be applied only to that information or material the defense aspect of which is paramount, and the unauthorized disclosure of which could result in exceptionally grave damage to the Nation such as leading to a definite break in diplomatic relations affecting the defense of the United States, an armed attack against the United States or its allies, a war, or the compromise of military or defense plans, or intelligence operations, or scientific or technological developments vital to the national defense." Are the property interests of the motion picture industry to be given greater weight than that? Even if you believe that Congress would sanction that, as Bryan Taylor pointed out: Kaplan put an ellipsis over "but in no event shall impose a prior restraint on free speech or the press protected under the 1st amendment to the Constitution; " when he quoted 1203(b)(1) on p.83. Finally, we come to Kaplan's "disease metaphor" (p. 61). If DeCSS is like an infection that can spread from person to person and become uncontrollable, then so are communism, racism, feminism, Nazism, the theory of evolution, unconventional sexuality and any number of other ideas and ideologies that the majority has sought to ban from appearing in the press and, particularly, from appearing in movies. It would be very interesting to obtain the MPAA own first amendment pleadings in cases where the censorship of motion pictures has been proposed. Arnold Reinhold From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 22 16:05:34 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA06262 for dvd-discuss-outgoing; Tue, 22 Aug 2000 16:05:34 -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 QAA06259 for ; Tue, 22 Aug 2000 16:05:32 -0400 Received: from schoen by zork.zork.net with local (Exim 3.12 #1 (Debian)) id 13RKIm-0002pa-00; Tue, 22 Aug 2000 13:05:40 -0700 Date: Tue, 22 Aug 2000 13:05:39 -0700 From: Seth David Schoen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] more errors in Kaplan's Message-ID: <20000822130539.L235@zork.net> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <20000822175414.28887.qmail@web511.mail.yahoo.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0.1i In-Reply-To: <20000822175414.28887.qmail@web511.mail.yahoo.com>; from bryan_w_taylor@yahoo.com on Tue, Aug 22, 2000 at 10:54:14AM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Bryan Taylor writes: > Also, where is the evidence that "I agree" was clicked by the person > who did the reverse engineering? The Wagner decl. says you can install software without using the supplied install wizard. The DVD CCA says in reply that this is true, _but_ anyone doing this is obviously engaged in misappropriation, etc., basically because if you have to do this, you know you're hacking around something and hence that what you are doing is wrong. They have a very strange view of clickwrap licenses which reminds me, in a way, of Herbert Spencer's critique of electoral politics: And thus we are introduced to the novel principle that A's consent to a thing is not determined by what A says, but by what B may happen to say! Install wizard programmers are "B". And install scripts have gone from being a convenience for users to -- well, as the Jello Biafra fortune says, "the conveniences you demanded are now mandatory". foo: foo.c gcc -O2 -DVDCCA -o foo foo.c install: foo echo By installing foo, you indicate your consent to this sentence. install -g bin -m 755 foo /usr/local/bin -- 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 Aug 22 16:06:58 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA06620 for dvd-discuss-outgoing; Tue, 22 Aug 2000 16:06:58 -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 QAA06616 for ; Tue, 22 Aug 2000 16:06:57 -0400 Received: from schoen by zork.zork.net with local (Exim 3.12 #1 (Debian)) id 13RKK8-0002ps-00; Tue, 22 Aug 2000 13:07:04 -0700 Date: Tue, 22 Aug 2000 13:07:04 -0700 From: Seth David Schoen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] OpenCSS - A new open standard for content protection Message-ID: <20000822130704.M235@zork.net> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <20000822185138.4758.qmail@web513.mail.yahoo.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0.1i In-Reply-To: <20000822185138.4758.qmail@web513.mail.yahoo.com>; from bryan_w_taylor@yahoo.com on Tue, Aug 22, 2000 at 11:51:38AM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Bryan Taylor writes: > Of course, if two separate people distribute each of those > noncircumventing devices separately ... ... then they are engaged in conspiracy. -- 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 Aug 22 16:33:11 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA06986 for dvd-discuss-outgoing; Tue, 22 Aug 2000 16:33:11 -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 QAA06983 for ; Tue, 22 Aug 2000 16:33:00 -0400 Message-ID: <20000822203238.27404.qmail@web511.mail.yahoo.com> Received: from [131.44.121.4] by web511.mail.yahoo.com; Tue, 22 Aug 2000 13:32:38 PDT Date: Tue, 22 Aug 2000 13:32:38 -0700 (PDT) From: Bryan Taylor Subject: [dvd-discuss] Illegal T-shirts To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu What does Jon Johansen have in common with Marilyn Manson? http://www.freedomforum.org/news/2000/07/2000-07-31-05.htm __________________________________________________ Do You Yahoo!? Yahoo! Mail – Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 22 16:37:42 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA07080 for dvd-discuss-outgoing; Tue, 22 Aug 2000 16:37:42 -0400 Received: from mail.glenatl.glenayre.com (mail.glenatl.glenayre.com [157.230.160.51]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id QAA07077 for ; Tue, 22 Aug 2000 16:37:41 -0400 Received: from mindspring.com (mmcgown.glenatl.glenayre.com [157.230.162.136]) by mail.glenatl.glenayre.com (8.10.1/8.10.1) with ESMTP id e7MKbIX00216 for ; Tue, 22 Aug 2000 16:37:18 -0400 (EDT) Message-ID: <39A2E499.D7CA4479@mindspring.com> Date: Tue, 22 Aug 2000 16:37:45 -0400 From: mickeym X-Mailer: Mozilla 4.61 [en] (WinNT; I) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] more errors in Kaplan's Content-Type: text/plain; charset=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: > > Bryan Taylor wrote: > > > TPM = "technological protection measure" per the DMCA. That is, an > > > encryption/scrambling system. A clickwrap agreement doesn't > > qualify. > > > > Can you cite the basis for this? For some reason, my impression of > > the DMCA was that scrambling is not a required part of a TPM; it > > was just an example of what a TPM might look like. I would love > > to be wrong on this point! > > To qualify as a TPM a measure has to require application of information > with the authority of the copyright holder to gain access to the work. > Perhaps there are other methods besides cyrptography for doing that, > but I don't know any. Nevertheless, I don't see any way to assert that > clicking "I agree" (in Norway, no less) meets the definition at all. > > Clickwrap agreements purport to be contracts, not access controls. God > help us otherwise. > Pray hard, then, because the clickwrap agreement will likely contain an "I promise not to reverse engineer anything" statement, and a TPM is used to make sure you agree. I know it's crazy, but this house of cards seems to be standing strong. mickeym From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 22 16:48:19 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA07185 for dvd-discuss-outgoing; Tue, 22 Aug 2000 16:48:19 -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 QAA07182 for ; Tue, 22 Aug 2000 16:48:18 -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 PAA01721 for ; Tue, 22 Aug 2000 15:48:26 -0500 (CDT) Message-ID: <39A2E79B.F882BBDC@uic.edu> Date: Tue, 22 Aug 2000 15:50:36 -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] OpenCSS - A new open standard for content protection Content-Type: text/plain; charset=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 philosophy behind OpenCSS could be described as: EMBRACE the CSS standard by adopting it, EXTEND the CSS standard into OpenCSS by using up the entire keyspace. EXTINGUISH CSS by making OpenCSS more attractive to consumers. OpenCSS DVD players can have firewire digital video outputs while CSS players can't. I don't know if any software companies have ever tried this strategy, but my gut feeling is that it just might work. From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 22 16:57:18 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA07406 for dvd-discuss-outgoing; Tue, 22 Aug 2000 16:57:18 -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 QAA07403 for ; Tue, 22 Aug 2000 16:57:17 -0400 Received: from ip254.bedford2.ma.pub-ip.psi.net ([38.32.10.254]) by relay20.smtp.psi.net with smtp (Exim 3.13 #3) id 13RL6q-00066K-00 for dvd-discuss@eon.law.harvard.edu; Tue, 22 Aug 2000 16:57:25 -0400 From: Ron Gustavson To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Freedom of the press Date: Tue, 22 Aug 2000 16:50:59 -0400 Message-ID: References: <20000821190805.16200.qmail@web512.mail.yahoo.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 QAA07404 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, 22 Aug 2000 15:21:25 -0400, "Arnold G. Reinhold" wrote: >A lot of the discussion here has focused on speech issues, but there >is also a First Amendment right to freedom of the press. No one >disputes that 2600.com is a member of the press. Freedom of speech >and freedom of the press are closely related under US Constitutional >law, but they are not identical, and press freedoms are arguable >broader and more jealously protected. For example, has U.S. v. [_especially_ with the dearth of 1998 coverage of legislation surrounding and leading up to both the Bono Act and DMCA] __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 22 17:12:48 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA07597 for dvd-discuss-outgoing; Tue, 22 Aug 2000 17:12:48 -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 RAA07594 for ; Tue, 22 Aug 2000 17:12:47 -0400 Message-ID: <20000822211221.5003.qmail@web511.mail.yahoo.com> Received: from [131.44.121.4] by web511.mail.yahoo.com; Tue, 22 Aug 2000 14:12:21 PDT Date: Tue, 22 Aug 2000 14:12:21 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] more errors in Kaplan's To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --- Seth David Schoen wrote: > Bryan Taylor writes: > > > Also, where is the evidence that "I agree" was clicked by the > > person who did the reverse engineering? > > The Wagner decl. says you can install software without using the > supplied install wizard. > > The DVD CCA says in reply that this is true, _but_ anyone doing this > is obviously engaged in misappropriation, etc., basically because if > you have to do this, you know you're hacking around something and > hence that what you are doing is wrong. Oh my god! So now if you take steps to avoid accepting an offer to engage in a contract, then you are bound by it's terms? It is just unbelievable that this stuff doesn't get laughed out of court. __________________________________________________ Do You Yahoo!? Yahoo! Mail – Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 22 17:26:18 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA08216 for dvd-discuss-outgoing; Tue, 22 Aug 2000 17:26:18 -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 RAA08213 for ; Tue, 22 Aug 2000 17:26:17 -0400 Received: from mediaone.net (h0060b03c5b8b.ne.mediaone.net [24.128.18.77]) by chmls05.mediaone.net (8.8.7/8.8.7) with ESMTP id RAA22298 for ; Tue, 22 Aug 2000 17:26:25 -0400 (EDT) Message-ID: <39A2F001.C032C932@mediaone.net> Date: Tue, 22 Aug 2000 17:26:25 -0400 From: Sphere X-Mailer: Mozilla 4.73 [en] (WinNT; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] OpenCSS - A new open standard for content protection References: <39A2B16A.21396553@uic.edu> <39A2B6D4.EE2BA70A@mit.edu> <52e5qs8fr6n9ugqafdh9213e1vsn1qq779@4ax.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 Ron Gustavson wrote: > > On Tue, 22 Aug 2000 13:22:28 -0400, Ravi Nanavati wrote: > > >John Schulien wrote: ... > > >I'm sure they can decide not to use the revoked > >Xing key. Other copyright owners may choose > >(depending on the legal agreements they have made) > >to use player keys that the DVD CCA reserved for > >future expansion as OpenCSS "authority keys". > > note: Because existing player keys are secret, we > can't know if they are or aren't player keys as well. And > because the OpenCSS player will come without any keys, > the MPA can have no objection. (I would avoid any RE'd > or known player keys to start with, although these shouldn't > necessarily be reserved as they are supposed to be secret.) > ... If there was someone acting as an authority to hand out unique keys it might be better to admit that the probable keys of the MPAA's were known, and to state that these keys believed to be already in use will not be handed out. -- Sphere. Is DeCSS.c obscene? Why can't I read it? Can knowledge be forbidden? From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 22 17:35:19 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA08373 for dvd-discuss-outgoing; Tue, 22 Aug 2000 17:35:19 -0400 Received: from web115.yahoomail.com (web115.yahoomail.com [205.180.60.88]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id RAA08370 for ; Tue, 22 Aug 2000 17:35:18 -0400 Received: (qmail 20580 invoked by uid 60001); 22 Aug 2000 21:35:24 -0000 Message-ID: <20000822213524.20579.qmail@web115.yahoomail.com> Received: from [216.165.3.58] by web115.yahoomail.com; Tue, 22 Aug 2000 14:35:24 PDT Date: Tue, 22 Aug 2000 14:35:24 -0700 (PDT) From: "Tuyet A. Ngoc Tran" Subject: Re: [dvd-discuss] Freedom of the press To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Speaking of US-intimidation: http://www.2600.org.au/dvd.html --- "Arnold G. Reinhold" wrote: > A lot of the discussion here has focused on speech > issues, but there > is also a First Amendment right to freedom of the > press. No one > disputes that 2600.com is a member of the press. > Freedom of speech > and freedom of the press are closely related under > US Constitutional > law, but they are not identical, and press freedoms > are arguable > broader and more jealously protected. For example, > has U.S. v. > O'Brien, which is at the heart of Judge Kaplan's > ruling, ever been > applied to the press? If not, its application here > is certainly novel > and chilling. > > Kaplan employs defamation law to justify his ban on > linking. It is > true that the Supreme Court has not entirely > eliminated defamation > law's applicability to the press, even though it has > sharply limited > its use. But defamation law is consistent to some > degree with the > goal of press freedom. Defamation law only restricts > false > information. In US law truth is an absolute defense. > > Another example where the press enjoys stronger > freedom is in the law > of prior restraint. Kaplan shows little respect for > the Supreme > Court's pronouncements on prior restraint, saying > "... there is a > significant gap between rhetoric and reality." > (p.64). The examples > he cites to show this gap (footnotes 319 and 320) do > not deal with > the core mission of the press: the public's right to > know. One case > restricts casino advertising, but that falls under > the less protected > category of commercial speech. A news story telling > where casinos are > located would undoubtedly be protected. Another > deals with use of > copyrighted material in a biography. Much as I > disagree with that > decision, it still allows a biographer to express > his ideas. > Similarly the ban on using trademarks in a film has > only a minor > impact on the director's ability to express his > ideas. (Kaplan's > citation of Times Film vs Chicago is puzzling since > it was decided in > 1961, well before the key prior restraint cases.) > > None of the cases Kaplan's cites prevent the press > from presenting > truthful, original material to the public. DCMA, as > Kaplan interprets > it, would create a category of information that is > simply banned. The > press cannot print it and it cannot even tell the > public where else > it may be found. > > The one other body of law I can think of that > attempts to ban the > publication of information is the espionage laws, 18 > USC 793, 794. > Even these laws have come under the prior restraint > doctrine. Kaplan > of course mentions New York Times Co. vs. The United > States, but he > says it "dealt with an attempt to enjoin a newspaper > from publishing > an internal government history of the Vietnam war." > (p. 66) He > neglects to mention the documents in question were > classified "Top > Secret." Executive Order 10501 specifies: > > "The Top Secret classification shall be applied only > to that > information or material the defense aspect of which > is paramount, and > the unauthorized disclosure of which could result > in exceptionally > grave damage to the Nation such as leading to a > definite break in > diplomatic relations affecting the defense of the > United States, an > armed attack against the United States or its > allies, a war, or the > compromise of military or defense plans, or > intelligence operations, > or scientific or technological developments vital to > the national > defense." > > Are the property interests of the motion picture > industry to be given > greater weight than that? Even if you believe that > Congress would > sanction that, as Bryan Taylor pointed out: Kaplan > put an ellipsis > over "but in no event shall impose a prior restraint > on free speech > or the press protected under the 1st amendment to > the Constitution; " > when he quoted 1203(b)(1) on p.83. > > Finally, we come to Kaplan's "disease metaphor" (p. > 61). If DeCSS is > like an infection that can spread from person to > person and become > uncontrollable, then so are communism, racism, > feminism, Nazism, the > theory of evolution, unconventional sexuality and > any number of > other ideas and ideologies that the majority has > sought to ban from > appearing in the press and, particularly, from > appearing in movies. > It would be very interesting to obtain the MPAA own > first amendment > pleadings in cases where the censorship of motion > pictures has been > proposed. > > > Arnold Reinhold > > > __________________________________________________ Do You Yahoo!? Yahoo! Mail – Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 22 17:48:36 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA08663 for dvd-discuss-outgoing; Tue, 22 Aug 2000 17:48:36 -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 RAA08660 for ; Tue, 22 Aug 2000 17:48:35 -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 QAA12726 for ; Tue, 22 Aug 2000 16:48:43 -0500 (CDT) Message-ID: <39A2F5BD.37A102EA@uic.edu> Date: Tue, 22 Aug 2000 16:50:53 -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] OpenCSS - A new open standard for content protection Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Sphere writes: > If there was someone acting as an authority > to hand out unique keys it might be better > to admit that the probable keys of the MPAA's > were known, and to state that these keys > believed to be already in use will not be > handed out. There is no need for an authority to hand out unique keys, just as there is no need for a "central Unix authority" to hand out individual user passwords. Each disk is just as protected as any other disk, because the password may be any of the 2**40 possible passwords. We wouldn't want to take any steps that would compromise that wonderous, expansive, 40 bit keyspace, now would we? However, if the MPAA were to object, I'm sure that no one would mind if they were to submit a list of their CSS player keys, so that they could be included in a list in the (open) source code to the player. That way, the player could be programmed to reject those keys. "Have you had your RDA of irony today?" - John From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 22 18:24:05 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA09221 for dvd-discuss-outgoing; Tue, 22 Aug 2000 18:24:05 -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 SAA09218 for ; Tue, 22 Aug 2000 18:24:03 -0400 Message-ID: <20000822222341.11816.qmail@web513.mail.yahoo.com> Received: from [131.44.121.4] by web513.mail.yahoo.com; Tue, 22 Aug 2000 15:23:41 PDT Date: Tue, 22 Aug 2000 15:23:41 -0700 (PDT) From: Bryan Taylor Subject: [dvd-discuss] More on Content Neutrality To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-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 finding of content-neutrality of the DMCA still bugs me. I've been trying to dig up cases citing O'Brien to find out how to distinguish content-neutral from content-based. In Clark v. Community for Creative Non-Violence, the Supreme Court upheld a ban on a homelessness protest that involved sleeping outside in a National Park (in Washington DC). The Court ruled that the National Park Service's need to protect the parks justified a content-neutral restriction on the time, manner, and place of "camping". Most significantly, it enunciated a standard for content-neutrality: a regulation is content-neutral if it is "justified without reference to the content of the regulated speech." Now suppose that I download a DVD decryption program. How can this act be distinguished from downloading the sourcecode to PGP 'without reference to the content of the speech'. It's clearly impossible: you have to look at the code to figure out if it circumvents. Certain programs are prohibited precisely because of the content they spread: instructions on how to decode DVD's. Such restrictions must also "leave open ample alternative channels for communication of the information". Maybe this saves the T-shirt :-] Here's the quote from the case: _____________________________________ CLARK v. COMMUNITY FOR CREATIVE NON-VIOLENCE 468 U.S. 288 (1984) http://caselaw.findlaw.com/cgi-bin/getcase.pl?court=us&vol=468&invol=288 We need not differ with the view of the Court of Appeals that overnight sleeping in connection with the demonstration is expressive conduct protected to some extent by the First Amendment. We assume for present purposes, but do not decide, that such is the case, cf. United States v. O'Brien, 391 U.S. 367, 376 (1968), but this assumption only begins the inquiry. Expression, whether oral or written or symbolized by conduct, is subject to reasonable time, place, or manner restrictions. We have often noted that restrictions of this kind are valid provided that they are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information. __________________________________________________ Do You Yahoo!? Yahoo! Mail – Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 22 18:41:27 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA09401 for dvd-discuss-outgoing; Tue, 22 Aug 2000 18:41:27 -0400 Received: from train.sdrm.org (root@cx48762-a.cv1.sdca.home.com [24.0.158.22]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id SAA09398 for ; Tue, 22 Aug 2000 18:41:26 -0400 Received: from localhost (wolfgang@localhost) by train.sdrm.org (8.10.2/8.10.2) with ESMTP id e7MMfW008252 for ; Tue, 22 Aug 2000 15:41:33 -0700 Date: Tue, 22 Aug 2000 15:41:32 -0700 (PDT) From: Lewis E Wolfgang To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] OpenCSS - A new open standard for content protection In-Reply-To: <39A2E79B.F882BBDC@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 Tue, 22 Aug 2000, John Schulien wrote: > The philosophy behind OpenCSS could be described as: > > EMBRACE the CSS standard by adopting it, > > EXTEND the CSS standard into OpenCSS by using up > the entire keyspace. > > EXTINGUISH CSS by making OpenCSS more attractive > to consumers. OpenCSS DVD players can have firewire > digital video outputs while CSS players can't. Har, this is GREAT! This is how a large software monopoly subsumes and corrupts industry standards. Sweet irony that the mighty fall by their own sword! Regards, Lew Wolfgang From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 22 18:41:45 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA09409 for dvd-discuss-outgoing; Tue, 22 Aug 2000 18:41:45 -0400 Received: from dial82.roadrunner.com (sf-du82.cybermesa.com [209.12.75.82]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id SAA09406 for ; Tue, 22 Aug 2000 18:41:41 -0400 Received: (from paul@localhost) by dial82.roadrunner.com (8.8.7/8.8.7) id QAA05456 for dvd-discuss@eon.law.harvard.edu; Tue, 22 Aug 2000 16:42:26 -0600 Date: Tue, 22 Aug 2000 16:42:25 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] code as speech Message-ID: <20000822164224.A5311@localhost> References: <200008211641.MAA32633@samsara.law.cwru.edu> <20000821111238.Z5992@zork.net> <20000821202732.A5496@inka.de> <8nuhep$m77$1@blowfish.isaac.cs.berkeley.edu> <20000822124659.K235@zork.net> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <20000822124659.K235@zork.net>; from schoen@loyalty.org on Tue, Aug 22, 2000 at 12:46:59PM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, Aug 22, 2000 at 12:46:59PM -0700, Seth David Schoen wrote: > David A. Wagner writes: [ ... ] > As you and Bruce Schneier keep telling everyone, a "stronger" system > wouldn't have been any stronger if implemented in published software. > All future software CP will be defeated until debuggers are illegal. All "CP" will be defeated until data recording and data entry devices are licensed and their users bonded. Publication is _by definition_ providing people an opportunity to make copies. All post-publication "CP"-systems are designed to have this O(1) "attack" called the "play" button. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 22 18:42:35 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA09500 for dvd-discuss-outgoing; Tue, 22 Aug 2000 18:42:35 -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 SAA09496 for ; Tue, 22 Aug 2000 18:42:34 -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 PAA23284 for ; Tue, 22 Aug 2000 15:42:24 -0700 Received: (from daw@localhost) by blowfish.isaac.cs.berkeley.edu (8.8.7/8.8.7) id PAA23208; Tue, 22 Aug 2000 15:42:29 -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] OpenCSS - A new open standard for content protection Date: 22 Aug 2000 15:41:21 -0700 Organization: A poorly-installed InterNetNews site Lines: 13 Distribution: isaac Message-ID: <8nuvih$ml7$1@blowfish.isaac.cs.berkeley.edu> References: <39A2E79B.F882BBDC@uic.edu> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu John Schulien wrote: > The philosophy behind OpenCSS could be described as: > [...] > EXTINGUISH CSS by making OpenCSS more attractive > to consumers. OpenCSS DVD players can have firewire > digital video outputs while CSS players can't. Ahh, so OpenCSS is to be a circumvention device! :-) At least, that's what Hollywood will say. After all, if OpenCSS allows firewire digital output and Hollywood didn't want that, then they'll argue that you are building a circumvention tool. If you follow this route, aren't you risking the same difficulties that DeCSS ran into? From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 22 18:55:44 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA09661 for dvd-discuss-outgoing; Tue, 22 Aug 2000 18:55:44 -0400 Received: from abraham.cs.berkeley.edu (abraham.CS.Berkeley.EDU [128.32.37.121]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id SAA09658 for ; Tue, 22 Aug 2000 18:55:29 -0400 Received: from blowfish.isaac.cs.berkeley.edu (blowfish.isaac.cs.berkeley.edu [169.229.3.195]) by abraham.cs.berkeley.edu (8.8.6/8.8.6) with ESMTP id PAA23397 for ; Tue, 22 Aug 2000 15:55:13 -0700 Received: (from daw@localhost) by blowfish.isaac.cs.berkeley.edu (8.8.7/8.8.7) id PAA23271; Tue, 22 Aug 2000 15:55:18 -0700 To: dvd-discuss@eon.law.harvard.edu Path: not-for-mail From: daw@cs.berkeley.edu (David A. Wagner) Newsgroups: isaac.lists.dvd-discuss Subject: Re: [dvd-discuss] code as speech Date: 22 Aug 2000 15:55:08 -0700 Organization: A poorly-installed InterNetNews site Lines: 29 Distribution: isaac Message-ID: <8nv0cc$mn6$1@blowfish.isaac.cs.berkeley.edu> References: <20000821202732.A5496@inka.de> <8nuhep$m77$1@blowfish.isaac.cs.berkeley.edu> <20000822124659.K235@zork.net> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Seth David Schoen wrote: > Conversely, it's odd that people haven't challenged the claim that MEI > and Toshiba had no choice but to use a 40-bit cryptosystem because > anything stronger was not exportable. Really? I feel quite sure that people have challenged this claim before. For one, export of decryption-only software is perfectly allowed, regardless of key-length. For two, the 40-bit limit was raised to 56 bits before the release of DVD players, if I remember correctly. For three, systems that do not permit encryption of arbitrary content are supposed to usually get approval for export even if they exceed a 40-bit keylength, or so the Commerce Dept. used to claim, in any case. (I can't remember whether I wrote any of this in my declaration, though.) But in some sense the export rules are a distraction. I wrote in my declaration that CSS was extremely weak, for a number of reasons: it uses 40-bit keys, it was shoddily designed and hence has a shorter keylength, and crypto can't prevent copying anyway. The MPAA responded to the claims about the weakness of CSS by saying "we were forced to use a weak cryptosystem due to export law", and ignored my other, more serious points. I am afraid, in retrospect, that anyone who was not exceptionally well-informed might come to the mistaken conclusion that the MPAA had thoroughly refuted these points, when in reality they had refuted -- at most -- just one of three independent observations. So, in retrospect, perhaps mentioning the export issue just confused the issue, alas. From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 22 18:59:45 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA09729 for dvd-discuss-outgoing; Tue, 22 Aug 2000 18:59:45 -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 SAA09726 for ; Tue, 22 Aug 2000 18:59:44 -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 SAA29571 for ; Tue, 22 Aug 2000 18:59:34 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id SAA16651; Tue, 22 Aug 2000 18:59:34 -0400 (EDT) Date: Tue, 22 Aug 2000 18:59:34 -0400 (EDT) Message-Id: <200008222259.SAA16651@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] more errors in Kaplan's In-Reply-To: <20000822193556.24514.qmail@web515.mail.yahoo.com> References: <20000822193556.24514.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: > > Can you cite the basis for this? For some reason, my impression of > > the DMCA was that scrambling is not a required part of a TPM; it > > was just an example of what a TPM might look like. I would love > > to be wrong on this point! > > To qualify as a TPM a measure has to require application of information > with the authority of the copyright holder to gain access to the work. > Perhaps there are other methods besides cyrptography for doing that, > but I don't know any. Nevertheless, I don't see any way to assert that > clicking "I agree" (in Norway, no less) meets the definition at all. Well, the relevant point, for this conversation, is > Clickwrap agreements purport to be contracts, not access controls. God > help us otherwise. with which I have no argument. That said, I think that some forms of password protection systems would qualify; see the MIT-student records system cited as an example in the authority paper. FWIW; the 1201(a) definition of "effective access control" doesn't mention encryption or scrambling at all, and the definition of "circumvention" mentions both as alternatives, but allows other unnamed alternatives as well. See http://www.ai.mit.edu/people/rst/dmca/auth/auth.html#SECTION00042000000000000000 for the examples, and http://www.ai.mit.edu/people/rst/dmca/auth/auth.html#SECTION00062000000000000000 for more detailed argument, if you care for it. rst From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 22 19:04:54 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA09925 for dvd-discuss-outgoing; Tue, 22 Aug 2000 19:04:54 -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 TAA09921 for ; Tue, 22 Aug 2000 19:04:53 -0400 Received: from mediaone.net (h0060b03c5b8b.ne.mediaone.net [24.128.18.77]) by chmls05.mediaone.net (8.8.7/8.8.7) with ESMTP id TAA12473 for ; Tue, 22 Aug 2000 19:05:02 -0400 (EDT) Message-ID: <39A3071E.83B79F60@mediaone.net> Date: Tue, 22 Aug 2000 19:05:02 -0400 From: Sphere X-Mailer: Mozilla 4.73 [en] (WinNT; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] OpenCSS - A new open standard for content protection References: <39A2F5BD.37A102EA@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: > > Sphere writes: > > If there was someone acting as an authority > > to hand out unique keys it might be better > > to admit that the probable keys of the MPAA's > > were known, and to state that these keys > > believed to be already in use will not be > > handed out. > > There is no need for an authority to hand out > unique keys, just as there is no need for a > "central Unix authority" to hand out individual > user passwords. Each disk is just as protected > as any other disk, because the password > may be any of the 2**40 possible passwords. > > We wouldn't want to take any steps that would > compromise that wonderous, expansive, > 40 bit keyspace, now would we? > > However, if the MPAA were to object, I'm sure > that no one would mind if they were to submit > a list of their CSS player keys, so that they could > be included in a list in the (open) source code > to the player. That way, the player could be > programmed to reject those keys. I was thinking of both a more direct show of "good faith" and less dependence upon the technology with more dependance upon people. > "Have you had your RDA of irony today?" > - John -- Sphere. Is DeCSS.c obscene? Why can't I read it? Can knowledge be forbidden? From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 22 19:13:39 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA10001 for dvd-discuss-outgoing; Tue, 22 Aug 2000 19:13:39 -0400 Received: from mta4.rcsntx.swbell.net (mta4.rcsntx.swbell.net [151.164.30.28]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id TAA09997 for ; Tue, 22 Aug 2000 19:13:08 -0400 Received: from swbell.net ([64.216.211.86]) by mta4.rcsntx.swbell.net (Sun Internet Mail Server sims.3.5.2000.01.05.12.18.p9) with ESMTP id <0FZP00342V0OGD@mta4.rcsntx.swbell.net> for dvd-discuss@eon.law.harvard.edu; Tue, 22 Aug 2000 18:10:01 -0500 (CDT) Date: Tue, 22 Aug 2000 18:01:00 -0500 From: Jolley Subject: [dvd-discuss] Errors and flaws in Kaplan's opinion To: dvd-discuss@eon.law.harvard.edu Message-id: <39A3062C.CD924B9@swbell.net> Organization: Southwestern Bell Internet Services MIME-version: 1.0 X-Mailer: Mozilla 4.72 [en]C-SBI-NC472 (Win98; U) Content-type: text/plain; charset=us-ascii Content-transfer-encoding: 7bit X-Accept-Language: en Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I just noticed that in Kaplan's opinion that there is an error in the definition of a gigabyte. It is written as equivalent to a megabyte. Perhaps this could be the cause of his error where he states that a movie can be downloaded in 3 minutes. Was Kaplan trying to calculate transmission speeds based on this error? On page 6 k>A kilobyte ("K") is 1024 bytes, a megabyte ("MB") 1024 kilobytes, and a k>gigabyte ("GB") 1024 kilobytes. On page 25. k>Hence, transmission times ranging from three to twenty minutes to six hours or k>more for a feature length film are readily achievable, depending upon the users' k>precise circumstances. Also, I would say that these transmission times are NOT readily available. -------- It seems that Kaplan is all alone on this next point. On Page 24. k>Indeed, having compared a store-bought DVD with portions of a copy k>compressed and synchronized with DivX (which often are referred to as "DivX'd" k>motion pictures), the Court finds that the loss of quality, at least in some cases, is k>imperceptible or so nearly imperceptible as to be of no importance to ordinary k>consumers. I think the defendents think that DVD image quality is important to ordinary consumers. The plaintiffs, just from the fact that they went through all of the trouble of using a new (and more expensive to produce) format, also think that DVD image quality is important to ordinary consumers. Otherwise, they would have used standard CDs. Maybe this plays into the theory that the plaintiffs want to control the DVD player market. They certainly don't control the CD player market (at least I don't think they do.) -------- How can anyone tell the difference in quality of a decrypted film and an encrypted film? I think Kaplan must have accidentaly deleted "The encrypted file can be copied like any other file." On page 23. k>The quality of the decrypted film is virtually identical to that of encrypted films k>on DVD. The decrypted file can be copied like any other. -------- I don't remember reading this in any of the transcripts. What information does Kaplan have to make the conclusion that there is a significant number of pirated copyrighted movies on "writeable" CD-ROM? On page 24. k>But the creation of pirated copies of copyrighted movies on writeable k>CD-ROMs, although significant, .... -------- The last time I burned a CD-ROM, it took at least twenty minutes. I don't think it's fair to say that one can make as many copies as they wish. I've got better things to do than sit around watching pits burned into a CD-ROM. On page 24. k>Hence, it is entirely feasible to decrypt a DVD with DeCSS, compress and k>synchronize it with DivX, and then make as many copies as one wishes by burning k>the resulting files onto writeable CD-ROMs, which are sold blank for about one k>dollar apiece. -------- This may be a small point, but, I don't think you can say absolutely that digital files can be copied without degradation from generation to generation. Errors can and do happen when transferring digital data. On page 14 k>...increased risk of piracy by virtue of the fact that digital files, unlike the material k>on video cassettes, can be copied without degradation from generation to k>generation. From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 22 19:20:46 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA10274 for dvd-discuss-outgoing; Tue, 22 Aug 2000 19:20:46 -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 TAA10271 for ; Tue, 22 Aug 2000 19:20:37 -0400 Received: from mediaone.net (h0060b03c5b8b.ne.mediaone.net [24.128.18.77]) by chmls05.mediaone.net (8.8.7/8.8.7) with ESMTP id TAA20129 for ; Tue, 22 Aug 2000 19:20:30 -0400 (EDT) Message-ID: <39A30ABE.88C6239F@mediaone.net> Date: Tue, 22 Aug 2000 19:20:30 -0400 From: Sphere X-Mailer: Mozilla 4.73 [en] (WinNT; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] More on Content Neutrality References: <20000822222341.11816.qmail@web513.mail.yahoo.com> Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Bryan Taylor wrote: > ... > > CLARK v. COMMUNITY FOR CREATIVE NON-VIOLENCE > 468 U.S. 288 (1984) > http://caselaw.findlaw.com/cgi-bin/getcase.pl?court=us&vol=468&invol=288 > > We need not differ with the view of the Court of Appeals that overnight > sleeping in connection with the demonstration is expressive conduct > protected to some extent by the First Amendment. We assume for present > purposes, but do not decide, that such is the case, cf. United States > v. O'Brien, 391 U.S. 367, 376 (1968), but this assumption only begins > the inquiry. Expression, whether oral or written or symbolized by > conduct, is subject to reasonable time, place, or manner restrictions. > We have often noted that restrictions of this kind are valid provided > that they are justified without reference to the content of the > regulated speech, that they are narrowly tailored to serve a > significant governmental interest, and that they leave open ample > alternative channels for communication of the information. My reading would be that Kaplan missed on three out of three. 1) The content is potentially a circumvention device. 2) The regulation is broad in the extreme, as it covers all such potential content. 3) Only extremely restricted alternative channels are left open. -- Sphere. Is DeCSS.c obscene? Why can't I read it? Can knowledge be forbidden? From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 22 19:21:50 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA10298 for dvd-discuss-outgoing; Tue, 22 Aug 2000 19:21:50 -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 TAA10295 for ; Tue, 22 Aug 2000 19:21:48 -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 SAA22557 for ; Tue, 22 Aug 2000 18:21:51 -0500 (CDT) Message-ID: <39A30B91.1211DA6E@uic.edu> Date: Tue, 22 Aug 2000 18:24:02 -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] OpenCSS - A new open standard for content protection Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu JS> EXTINGUISH CSS by making OpenCSS more attractive JS> to consumers. OpenCSS DVD players can have firewire JS> digital video outputs while CSS players can't. DW> Ahh, so OpenCSS is to be a circumvention device! :-) DW> At least, that's what Hollywood will say. After all, if OpenCSS allows DW> firewire digital output and Hollywood didn't want that, then they'll argue DW> that you are building a circumvention tool. If you follow this route, DW> aren't you risking the same difficulties that DeCSS ran into? No, it isn't. In order for a work to be played on an OpenCSS DVD player, the copyright owner must: 1) Create a DVD with an OpenCSS authorization code on it. 2) Publish the DVD. 3) Disclose the authorization code in some way. Since the MPAA companies won't be including any OpenCSS codes on their discs, they are going to shut themselves out of the new OpenCSS based DVD market. Their product will be technologically inferior, and the presence of a competing, higher quality product will create market demand for OpenCSS and non-CSS encrypted content. Another possibility would be to manufacture a DVD player with both analog and digital outputs, under a CSS license, but only enable the digital output when an OpenCSS or non-CSS disc was inserted. The goal would be to raise public awareness that CSS == inferior, and provide a powerful incentive for copyright owners -- especially those that take pride in their work -- to NOT use CSS. After all, CSS is no longer protecting anything, so a producer who wanted to draw attention to his movie could leave CSS off, or use an OpenCSS code, and advertise his disc as "digital-video capable." This could be a big selling point -- after all, when a British company started offering modified DVD players with a digital video output, it caused a media sensation, and the picture quality was described as a noticable improvement over the Macrovision-corrupted analog signal from standard DVD players. Your point leads beautifully into the other aspect of OpenCSS. Any attack on OpenCSS leads right into an anti-trust mine field! DW> At least, that's what Hollywood will say. After all, if OpenCSS allows DW> firewire digital output and Hollywood didn't want that, then they'll argue DW> that you are building a circumvention tool. It is one thing for the MPAA to form a trust to manufacture and distribute players and media that disallow high quality digital video output of THEIR OWN CONTENT. It is quite another thing for them to attempt to force off the market players and media that allow high quality digital video output of OTHER PEOPLE'S CONTENT ONLY. Also, as ravi_n@mit.edu pointed out, if a copyright owner wanted to allow end users to use a superior OpenCSS-based DVD player in conjunction with a digital video display to produce a superior image than is possible through obsolete, analog, Macrovision-corrupted CSS-based technology, they can ask that an additional OpenCSS authorization code be added to the standard list of DVD-CCA player codes. If the disc manufacturers refused to do this; if their contract with the DVD-CCA specifies that they may only include DVD-CCA approved player codes on a DVD disc, then that would be an even bigger anti-trust flag. And finally, if the DVD-CCA license disallows the inclusion of a digital video output for non-CSS protected content on a dedicated player, that would be even more grounds for anti-trust action. In this case, the content owners would be using their copyrights to restrict what end users can do with other people's copyrighted works. - John From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 22 19:24:57 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA10390 for dvd-discuss-outgoing; Tue, 22 Aug 2000 19:24:57 -0400 Received: from mercury.clearway.com (c100.clearway.com [199.103.231.100]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id TAA10387 for ; Tue, 22 Aug 2000 19:24:56 -0400 Received: by c100.clearway.com with Internet Mail Service (5.5.2650.21) id ; Tue, 22 Aug 2000 19:28:28 -0400 Message-ID: From: Leland Ray To: "'dvd-discuss@eon.law.harvard.edu'" Subject: [dvd-discuss] commerce and copyright Date: Tue, 22 Aug 2000 19:28:25 -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 Kaplan has a lot of trouble with commerce and copyright in 1201. He is not alone! He reads the statute several times, but fails to answer the most basic question: Is "access to the work" commerce or copyright? >From the decision, p 42: "Indeed, as the legislative history demonstrates, the decision not to make fair use a defense to a claim under section 1201(a) was quite deliberate." ---- The Judiciary Committee Report states in part: "Paragraph (a)(1) does not apply 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. In a fact situation where the access is authorized, the traditional defenses to copyright infringement, including fair use, would be fully applicable. So, an individual would not be able to circumvent in order to gain unauthorized access to a work, but would be able to do so in order to make fair use of a work which he or she has acquired lawfully." Notice the last sentence. At the risk of preaching to the choir, here it is again, with emphasis on the relevant parts: "So, an individual would not be able to circumvent in order to gain ^^^^^^^^^^^^^^^^ unauthorized access to a work, but would be able to do so in ^^^^^^^^^^^^^^^^^^^ ^^ order to make fair use of a work which he or she has acquired ^^^^^^^^ ^^^^^^^^^^^^ lawfully." ^^^^^^^^ The clear implication of this sentence is that access to a work is part of lawful acquisition of a work, in other words, that it is *commerce*. The work might also contain other "TPMs" (region codes are a good example). The circumvention of these other TPMs is generally not prohibited by 1201, and even then is subject to fair use limitations. ---- Kaplan also considers the question in footnote 137, where he says: "The DMCA proscribes trafficking in technology that decrypts or avoids an access control measure without the copyright holder consenting to the decryption or avoidance. See JUDICIARY COMM. REP. at 17-18 (fair use applies "where access is authorized"). The substitution of "authority" with "consent" is most significant. "Authority" is a general blanket, but consent is specific. Kaplan is arguing that the consent happens at each specific time a work is played, or that consent can be limited to certain devices or technologies. If that is the case, that is, if consent is specific, then the access to the work is *copyright*. To put it another way, commerce is opening the door to the room that contains the book, but copyright is opening the cover. So the argument in footnote 137 is that access is copyright, and on page 42 it is commerce. Which is it? It seems to me that if access is copyright, you must decide on the basis of copyright, with fair use and everything else. If access is commerce, then you must decide on the basis of commerce, how a sale is completed, how the exchange takes place. Frankly, I prefer that access be commerce. I want to see a legal analysis of how putting my DVD in the drive constitutes a sale. From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 22 20:03:11 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA10924 for dvd-discuss-outgoing; Tue, 22 Aug 2000 20:03:11 -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 UAA10921 for ; Tue, 22 Aug 2000 20:03:10 -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 UAA03831; Tue, 22 Aug 2000 20:02:48 -0400 Message-Id: <200008230002.UAA03831@samsara.law.cwru.edu> To: dvd-discuss@eon.law.harvard.edu cc: junger@samsara.law.cwru.edu Subject: Re: [dvd-discuss] More on Content Neutrality In-reply-to: Your message of "Tue, 22 Aug 2000 19:20:30 EDT." <39A30ABE.88C6239F@mediaone.net> Date: Tue, 22 Aug 2000 20:02:18 -0400 From: "Peter D. Junger" Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Sphere writes: : Bryan Taylor wrote: : > : ... : > : > CLARK v. COMMUNITY FOR CREATIVE NON-VIOLENCE : > 468 U.S. 288 (1984) : > http://caselaw.findlaw.com/cgi-bin/getcase.pl?court=us&vol=468&invol=288 : > : > We need not differ with the view of the Court of Appeals that overnight : > sleeping in connection with the demonstration is expressive conduct : > protected to some extent by the First Amendment. We assume for present : > purposes, but do not decide, that such is the case, cf. United States : > v. O'Brien, 391 U.S. 367, 376 (1968), but this assumption only begins : > the inquiry. Expression, whether oral or written or symbolized by : > conduct, is subject to reasonable time, place, or manner restrictions. : > We have often noted that restrictions of this kind are valid provided : > that they are justified without reference to the content of the : > regulated speech, that they are narrowly tailored to serve a : > significant governmental interest, and that they leave open ample : > alternative channels for communication of the information. : : : My reading would be that Kaplan missed on : three out of three. : : 1) The content is potentially a circumvention : device. : 2) The regulation is broad in the extreme, as : it covers all such potential content. : 3) Only extremely restricted alternative : channels are left open. Add to this the fact that in ACLU v Reno the Court quite clearly held that forbidding the publication of something on the Internet or the World Wide Web is not what is meant by a ``time, place, or manner'' regulation. -- 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 Aug 22 21:11:06 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA11240 for dvd-discuss-outgoing; Tue, 22 Aug 2000 21:11:06 -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 VAA11237 for ; Tue, 22 Aug 2000 21:10:56 -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 SAA23938 for ; Tue, 22 Aug 2000 18:10:39 -0700 Received: (from daw@localhost) by blowfish.isaac.cs.berkeley.edu (8.8.7/8.8.7) id SAA24223; Tue, 22 Aug 2000 18:10:43 -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] more errors in Kaplan's Date: 22 Aug 2000 18:10:33 -0700 Organization: A poorly-installed InterNetNews site Lines: 7 Distribution: isaac Message-ID: <8nv8a9$nku$1@blowfish.isaac.cs.berkeley.edu> References: <20000822193556.24514.qmail@web515.mail.yahoo.com> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Bryan Taylor wrote: > To qualify as a TPM a measure has to require application of information > with the authority of the copyright holder to gain access to the work. Sure, of course there are. Take your favorite technique for access control; there are many which don't use cryptography. (Access control is an important subfield of computer security.) From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 22 21:15:01 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA11265 for dvd-discuss-outgoing; Tue, 22 Aug 2000 21:15:01 -0400 Received: from abraham.cs.berkeley.edu (abraham.CS.Berkeley.EDU [128.32.37.121]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id VAA11261 for ; Tue, 22 Aug 2000 21:14:49 -0400 Received: from blowfish.isaac.cs.berkeley.edu (blowfish.isaac.cs.berkeley.edu [169.229.3.195]) by abraham.cs.berkeley.edu (8.8.6/8.8.6) with ESMTP id SAA23956 for ; Tue, 22 Aug 2000 18:14:37 -0700 Received: (from daw@localhost) by blowfish.isaac.cs.berkeley.edu (8.8.7/8.8.7) id SAA24245; Tue, 22 Aug 2000 18:14:42 -0700 To: dvd-discuss@eon.law.harvard.edu Path: not-for-mail From: daw@cs.berkeley.edu (David A. Wagner) Newsgroups: isaac.lists.dvd-discuss Subject: Re: [dvd-discuss] OpenCSS - A new open standard for content protection Date: 22 Aug 2000 18:14:32 -0700 Organization: A poorly-installed InterNetNews site Lines: 5 Distribution: isaac Message-ID: <8nv8ho$nlk$1@blowfish.isaac.cs.berkeley.edu> References: <39A30B91.1211DA6E@uic.edu> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu And yet, if you obtained the appropriate CSS keys through some nefarious means, couldn't you use your hypothetical OpenCSS program to obtain access to watch Time Warner's movies and have a firewire digital output of them? Aren't you running the risk that this alone will be enough to convince the Kaplans of the world that OpenCSS can be used to circumvent? From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 22 21:18:13 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA11310 for dvd-discuss-outgoing; Tue, 22 Aug 2000 21:18:13 -0400 Received: from abraham.cs.berkeley.edu (abraham.CS.Berkeley.EDU [128.32.37.121]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id VAA11307 for ; Tue, 22 Aug 2000 21:18:06 -0400 Received: from blowfish.isaac.cs.berkeley.edu (blowfish.isaac.cs.berkeley.edu [169.229.3.195]) by abraham.cs.berkeley.edu (8.8.6/8.8.6) with ESMTP id SAA23964 for ; Tue, 22 Aug 2000 18:17:27 -0700 Received: (from daw@localhost) by blowfish.isaac.cs.berkeley.edu (8.8.7/8.8.7) id SAA24288; Tue, 22 Aug 2000 18:17:32 -0700 To: dvd-discuss@eon.law.harvard.edu Path: not-for-mail From: daw@cs.berkeley.edu (David A. Wagner) Newsgroups: isaac.lists.dvd-discuss Subject: Re: [dvd-discuss] OpenCSS - A new open standard for content protection Date: 22 Aug 2000 18:17:23 -0700 Organization: A poorly-installed InterNetNews site Lines: 11 Distribution: isaac Message-ID: <8nv8n3$nmv$1@blowfish.isaac.cs.berkeley.edu> References: <39A30B91.1211DA6E@uic.edu> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu John Schulien wrote: > Another possibility would be to manufacture a DVD player with > both analog and digital outputs, under a CSS license, How do you know that this is a possibility? My impression of the CSS license was that it, in general, requires DVD players not to provide digital outputs. Sure, maybe you should be allowed to provide digital outputs for non-CSS-encrypted content, and if you're lucky, maybe the CSS license will even let you do that; but how do you know that it will? Its restrictions might be more broad than you'd like, and it's not clear that you'll have any recourse, if that is the case. From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 22 22:48:45 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA11721 for dvd-discuss-outgoing; Tue, 22 Aug 2000 22:48:45 -0400 Received: from relay21.smtp.psi.net (relay21.smtp.psi.net [38.8.22.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id WAA11718 for ; Tue, 22 Aug 2000 22:48:44 -0400 Received: from ip158.bedford9.ma.pub-ip.psi.net ([38.32.79.158]) by relay21.smtp.psi.net with smtp (Exim 3.13 #3) id 13RQay-0000zs-00 for dvd-discuss@eon.law.harvard.edu; Tue, 22 Aug 2000 22:48:53 -0400 From: Ron Gustavson To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] OpenCSS - A new open standard for content protection Date: Tue, 22 Aug 2000 22:42:23 -0400 Message-ID: References: <39A30B91.1211DA6E@uic.edu> <8nv8ho$nlk$1@blowfish.isaac.cs.berkeley.edu> In-Reply-To: <8nv8ho$nlk$1@blowfish.isaac.cs.berkeley.edu> X-Mailer: Forte Agent 1.8/32.548 MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 8bit X-MIME-Autoconverted: from quoted-printable to 8bit by eon.law.harvard.edu id WAA11719 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On 22 Aug 2000 18:14:32 -0700, (David A. Wagner) wrote: >And yet, if you obtained the appropriate CSS keys through some nefarious >means, couldn't you use your hypothetical OpenCSS program to obtain access >to watch Time Warner's movies and have a firewire digital output of them? >Aren't you running the risk that this alone will be enough to convince the >Kaplans of the world that OpenCSS can be used to circumvent? Could even happen through non-nefarious accident. Firewire would be a nice convenience, but let's get rid of Macrovision first. Component and S-video will do fine for now. Besides, god knows what they'll be putting into Firewire in the next couple years. __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 22 23:39:38 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA12415 for dvd-discuss-outgoing; Tue, 22 Aug 2000 23:39:38 -0400 Received: from world.std.com (root@world-f.std.com [199.172.62.5]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id XAA12412 for ; Tue, 22 Aug 2000 23:39:37 -0400 Received: from [24.218.56.92] (h000a2792745c.ne.mediaone.net [24.218.56.92]) by world.std.com (8.9.3/8.9.3) with ESMTP id XAA21157 for ; Tue, 22 Aug 2000 23:37:53 -0400 (EDT) Mime-Version: 1.0 X-Sender: reinhold@world.std.com (Unverified) Message-Id: In-Reply-To: <8nui25$m7u$1@blowfish.isaac.cs.berkeley.edu> References: <8nui25$m7u$1@blowfish.isaac.cs.berkeley.edu> Date: Tue, 22 Aug 2000 23:37:35 -0400 To: dvd-discuss@eon.law.harvard.edu From: "Arnold G. Reinhold" Subject: Re: [dvd-discuss] 40-bit encryption (Was Re: code as speech) 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 11:50 AM -0700 8/22/2000, David A. Wagner wrote: >Arnold G. Reinhold wrote: >> I believe strong encryption was feasible and affordable in this >> application even way back in 1996. And I think there were signals >> from BXA that stronger encryption would be approved in narrow >> applications like CSS. I still wonder why they produced such a week >> product. > >Yes, me too, but in some sense, the 40-bit keylength is really a >distraction. I would argue that the most significant weaknesses >of CSS are the following two: > > - The CSS stream cipher is an abysmally poor piece of cryptographic > design, really shoddy workmanship. (The result is that Stevenson > found an attack that reduces its effective keylength to something > like 16 bits. That's shockingly bad, for a modern cipher.) > > - And anyway, even the strongest crypto algorithm would not help; > the notion that crypto can prevent copying is a mirage, an illusion, > tempting, appealing, but utterly wrong. This should not be a surprise > to anyone who took part in the `software copy protection' battles in > the 80's, or to anyone with a strong background in computer security. > >Yes, choosing a 40-bit keylength sure does sound like a sub-optimal >decision. But, in my opinion, the two issues above matter far more. I agree with your first point, but I'd like to take issue with your second. Strong encryption might not have produced invincible security in the DVD architecture, but it would definitely have helped. Say players always decrypted the media key inside an epoxied ASIC and kept player master key and decryption algorithm buried there. There are relatively few shops in the world that can reverse engineer such a scheme and the threat of MPAA legal action, even under pre-DMCA law, might well have kept them in line. There are other tamper proofing measures that could have been applied at reasonable cost. Also MPAA could have created hundreds of keys per manufacturer so that a single crack would only compromise, say, a month's worth of one brand's DVD player production, making a recall a practical response. ("Your drive will not decode DVDs sold after October 1, 2000. Please send your drive to the manufacture for a free replacement.") I think it is important to point out that copyright owners did and do have effective, if not perfect, technological means to protect their content and that MPAA was really negligent in their design. Otherwise a legal ban on describing circumvention technology is more likely to pass strict 1A scrutiny as the least restrictive measure Congress could have taken. Arnold Reinhold From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 22 23:53:40 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA12545 for dvd-discuss-outgoing; Tue, 22 Aug 2000 23:53:40 -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 XAA12542 for ; Tue, 22 Aug 2000 23:53:40 -0400 Received: from mit.edu (h0050da62b39d.ne.mediaone.net [24.147.217.121]) by chmls06.mediaone.net (8.8.7/8.8.7) with ESMTP id XAA03176; Tue, 22 Aug 2000 23:53:48 -0400 (EDT) Message-ID: <39A34B41.6936596A@mit.edu> Date: Tue, 22 Aug 2000 23:55:45 -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] OpenCSS - A new open standard for content protection References: <39A30B91.1211DA6E@uic.edu> <8nv8ho$nlk$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: > > And yet, if you obtained the appropriate CSS keys through some nefarious > means, couldn't you use your hypothetical OpenCSS program to obtain access > to watch Time Warner's movies and have a firewire digital output of them? > Aren't you running the risk that this alone will be enough to convince the > Kaplans of the world that OpenCSS can be used to circumvent? If people access Time Warner's movies with OpenCSS, they may individually be guilty of circumvention but OpenCSS is not a circumvention device. The only way Time Warner's movies can be descrambled with OpenCSS is if Time Warner does not adequately protect its trade secrets. That is not a problem for OpenCSS, it is a problem for Time Warner. It is only designed to be a "weakly" CSS-compatible access control so that it has a better chance of market acceptance. Unless the courts want to read the DMCA as allowing one group of copyright owners to prevent another group of copyright owners from using a particular protection mechanism (when no proprietary rights in the _mechanism_ are at stake), OpenCSS must be legal. If the courts do read the DMCA this way, then it should be straightforwardly unconstitutional because it does not follow the IP clause - granting to authors an exclusive right to a process for an unlimited time. Also, look at the tests from 1201(a)(2): No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that - (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; For OpenCSS: No. OpenCSS is designed and produced as an alternative (and, hopefully, commercially superior) access control that existing producers of CSS-encrypted content can support cheaply. The only reason an OpenCSS implementation can hypothetically be used to circumvent CSS is because it was a design goal that producers of CSS-encrypted content could support OpenCSS cheaply. OpenCSS implementations are not circumvention devices because. in the ordinary course of their operation (using a supplied OpenCSS "authorization key") they require an authorization key that carries the authority of the copyright holder. (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 For OpenCSS: Again, no. OpenCSS wishes to compete in the "effective access control" market. This is a commercially significant purpose separate from circumvention. OpenCSS developers think the OpenCSS authorization model (authorization explicitly granted with a key) will be more attractive to consumers than the DVD CCA authorization model (authorization granted only to deliberately crippled players which may be revoked in the future). The competition between these two visions of access control is certainly commercially significant because it will affect how consumers use copyrighted works and, consequently, what they will pay for them in the future. (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. OpenCSS is marketed as an alternative "effective access control", not as a circumvention device. We hope that consumers will accept it because of its clear, disclosed authorization model. We hope that copyright owners will support it because, with an open-source reference implementation, they will not need to worry about players for "fringe" operating systems. After all, this case has shown that one reason circumvention devices are developed are because some operating system does not have an authorized player. Since copyright owners are irreparably harmed when their chosen access controls are circumvented, the diminished possibility for the development of OpenCSS circumvention devices, should encourage them to support OpenCSS. - Ravi Nanavati From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 23 01:19:21 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id BAA12827 for dvd-discuss-outgoing; Wed, 23 Aug 2000 01:19:21 -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 BAA12824 for ; Wed, 23 Aug 2000 01:19:20 -0400 Received: from harper.uchicago.edu (sytobinh@harper.uchicago.edu [128.135.12.7]) by midway.uchicago.edu (8.10.1/8.10.1) with ESMTP id e7N5JTG11089 for ; Wed, 23 Aug 2000 00:19:29 -0500 (CDT) Received: from localhost (sytobinh@localhost) by harper.uchicago.edu (8.10.1/8.10.1) with ESMTP id e7N5JQW29535 for ; Wed, 23 Aug 2000 00:19:26 -0500 (CDT) X-Authentication-Warning: harper.uchicago.edu: sytobinh owned process doing -bs Date: Wed, 23 Aug 2000 00:19:26 -0500 (CDT) From: sam th To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] code as speech In-Reply-To: <20000821173326.28035.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 On Mon, 21 Aug 2000, Bryan Taylor wrote: > > --- Lars Gaarden wrote: > > I thought this had already been covered. > > > > RE for the purpose of interoperability is allowed both in Germany and > > Norway. You do _not_ lose this right even if you sign a contract or > > click an EULA that states otherwise. > > This has been asserted, but I haven't seen the legal citation for it. I > have seen one for EU law, but I don't know that that really binds > Norway. Certainly we all hope it's this way. The DVD-CCA will certainly > not stipulate to it, though. > Well, EU law cites will have little effect, as last I knew Norway was a holdout from joining. :-) sam th sam@uchicago.edu http://www.abisource.com/~sam From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 23 01:46:35 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id BAA13258 for dvd-discuss-outgoing; Wed, 23 Aug 2000 01:46:35 -0400 Received: from dial251.roadrunner.com (dial251.cybermesa.com [209.12.75.251] (may be forged)) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id BAA13255 for ; Wed, 23 Aug 2000 01:46:31 -0400 Received: (from paul@localhost) by dial251.roadrunner.com (8.8.7/8.8.7) id XAA08301 for dvd-discuss@eon.law.harvard.edu; Tue, 22 Aug 2000 23:48:10 -0600 Date: Tue, 22 Aug 2000 23:48:08 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] 40-bit encryption (Was Re: code as speech) Message-ID: <20000822234808.A8164@localhost> References: <8nui25$m7u$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 reinhold@world.std.com on Tue, Aug 22, 2000 at 11:37:35PM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, Aug 22, 2000 at 11:37:35PM -0400, Arnold G. Reinhold wrote: > At 11:50 AM -0700 8/22/2000, David A. Wagner wrote: > >Arnold G. Reinhold wrote: > >> I believe strong encryption was feasible and affordable in this > >> application even way back in 1996. And I think there were signals > >> from BXA that stronger encryption would be approved in narrow > >> applications like CSS. I still wonder why they produced such a week > >> product. > > > >Yes, me too, but in some sense, the 40-bit keylength is really a > >distraction. I would argue that the most significant weaknesses > >of CSS are the following two: > > > > - The CSS stream cipher is an abysmally poor piece of cryptographic > > design, really shoddy workmanship. (The result is that Stevenson > > found an attack that reduces its effective keylength to something > > like 16 bits. That's shockingly bad, for a modern cipher.) > > > > - And anyway, even the strongest crypto algorithm would not help; > > the notion that crypto can prevent copying is a mirage, an illusion, > > tempting, appealing, but utterly wrong. This should not be a surprise > > to anyone who took part in the `software copy protection' battles in > > the 80's, or to anyone with a strong background in computer security. > > > >Yes, choosing a 40-bit keylength sure does sound like a sub-optimal > >decision. But, in my opinion, the two issues above matter far more. > > I agree with your first point, but I'd like to take issue with your > second. Strong encryption might not have produced invincible security > in the DVD architecture, but it would definitely have helped. Say > players always decrypted the media key inside an epoxied ASIC and > kept player master key and decryption algorithm buried there. There > are relatively few shops in the world that can reverse engineer such > a scheme and the threat of MPAA legal action, even under pre-DMCA > law, might well have kept them in line. There are other tamper > proofing measures that could have been applied at reasonable cost. > Also MPAA could have created hundreds of keys per manufacturer so > that a single crack would only compromise, say, a month's worth of > one brand's DVD player production, making a recall a practical > response. ("Your drive will not decode DVDs sold after October 1, > 2000. Please send your drive to the manufacture for a free > replacement.") > > I think it is important to point out that copyright owners did and do > have effective, if not perfect, technological means to protect their > content and that MPAA was really negligent in their design. Otherwise > a legal ban on describing circumvention technology is more likely to > pass strict 1A scrutiny as the least restrictive measure Congress > could have taken. You are confusing cryptography, a measure applied to the copyrighted _work_, with macrovision, serial copy management, etc., which *must* in part be measures that apply to _devices_. Strong crypto would have helped the cartel by making it an engineering necessity *to sign the license* if one wanted to build a player. There would be zero engineering necessity to sign the license to make a fully functional copy --- simply press the "play" button on a licensed player and capture the output and redigitize. This "attack" is always possible so long as the work has been published (in any reasonable sense of the word published) and we're not living a police state. *Cryptography* as a technological matter doesn't solve the "copying problem". Because publishing a work means allowing people to view, see, perform a work, at least occasionally, then axiomatically one must (with authority) decrypt the work on those occasions. A license to the use the cryptography can be used to force player manufacturers to modify the design of their devices, making particular modes of copying less convenient. However, the simple hard truth is that people buy players to, well play movies. When that movie pops up on the screen, you've got it. Copy protection is finished at that point. That "copy protection" never had an engineering connection to the crypto. It is a result of copyright owners dictating what kinds of devices can be built, either through 1201(k) or the terms of the DVD-CCA license. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 23 02:15:08 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id CAA13398 for dvd-discuss-outgoing; Wed, 23 Aug 2000 02:15:08 -0400 Received: from tneu.visi.com (tneu.visi.com [209.98.6.48]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id CAA13395 for ; Wed, 23 Aug 2000 02:15:07 -0400 Received: from tneu.visi.com (tneu.visi.com [163.228.19.198]) by tneu.visi.com (Postfix) with ESMTP id 88054422 for ; Wed, 23 Aug 2000 01:03:26 -0500 (CDT) Date: Wed, 23 Aug 2000 01:03:26 -0500 (CDT) From: tim To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] 2600 web site In-Reply-To: <20000822234808.A8164@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 It looks like 2600 added a link to the front page of Disney's go.com search engine, along with the following text. Looking for a copy of DeCSS? The easiest way is to go to Disney's search engine and search for DeCSS. They will then LINK you to thousands of sites, something we're no longer allowed to do. It's possible we may not even be allowed to tell you this! You can still access our old list of mirror sites sans the links. --- Also, Emmanuel Goldstein wrote an analysis of the decision. http://www.2600.com/news/2000/0821.html The sega continues... :-) -- =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- ______ _ __ "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, 23 Aug 2000 02:15:59 -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 XAA24729 for ; Tue, 22 Aug 2000 23:15:51 -0700 Received: (from daw@localhost) by blowfish.isaac.cs.berkeley.edu (8.8.7/8.8.7) id XAA24717; Tue, 22 Aug 2000 23:15:55 -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] OpenCSS - A new open standard for content protection Date: 22 Aug 2000 23:14:47 -0700 Organization: A poorly-installed InterNetNews site Lines: 21 Distribution: isaac Message-ID: <8nvq4n$o46$1@blowfish.isaac.cs.berkeley.edu> References: <39A30B91.1211DA6E@uic.edu> <8nv8ho$nlk$1@blowfish.isaac.cs.berkeley.edu> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Ron Gustavson wrote: > On 22 Aug 2000 18:14:32 -0700, (David A. Wagner) wrote: > >And yet, if you obtained the appropriate CSS keys through some nefarious > >means, couldn't you use your hypothetical OpenCSS program to obtain access > >to watch Time Warner's movies and have a firewire digital output of them? > >Aren't you running the risk that this alone will be enough to convince the > >Kaplans of the world that OpenCSS can be used to circumvent? > > Could even happen through non-nefarious accident. Firewire would be a > nice convenience, but let's get rid of Macrovision first. Component and > S-video will do fine for now. But my point stands. Replace ``OpenCSS supports digital firewall output'' with ``OpenCSS supports Macrovision-free outputs'' (or ``OpenCSS supports S-video''), and you still have a danger that OpenCSS will be viewed as circumvention technology that can do something with the DVD content that regular DVD players can't. That mere act of outputting Macrovision-free (or S-video, or Component) versions of the copyrighted works, when normal CSS-licensed DVD players are forbidden to do so, might be construed as an act of circumvention. After all, the reason for those limitations in the CSS license are ostensibly to prevent copyright piracy. From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 23 02:31:04 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id CAA13528 for dvd-discuss-outgoing; Wed, 23 Aug 2000 02:31:04 -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 CAA13525 for ; Wed, 23 Aug 2000 02:31:03 -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 XAA24811 for ; Tue, 22 Aug 2000 23:30:55 -0700 Received: (from daw@localhost) by blowfish.isaac.cs.berkeley.edu (8.8.7/8.8.7) id XAA24762; Tue, 22 Aug 2000 23:30:59 -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] 40-bit encryption (Was Re: code as speech) Date: 22 Aug 2000 23:30:49 -0700 Organization: A poorly-installed InterNetNews site Lines: 49 Distribution: isaac Message-ID: <8nvr2p$o5p$1@blowfish.isaac.cs.berkeley.edu> References: <8nui25$m7u$1@blowfish.isaac.cs.berkeley.edu> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Arnold G. Reinhold wrote: > At 11:50 AM -0700 8/22/2000, David A. Wagner wrote: > >Yes, me too, but in some sense, the 40-bit keylength is really a > >distraction. I would argue that the most significant weaknesses > >of CSS are the following two: > > [...] > > - And anyway, even the strongest crypto algorithm would not help; > > the notion that crypto can prevent copying is a mirage, an illusion, > > tempting, appealing, but utterly wrong. This should not be a surprise > > to anyone who took part in the `software copy protection' battles in > > the 80's, or to anyone with a strong background in computer security. > > I agree with your first point, but I'd like to take issue with your > second. Strong encryption might not have produced invincible security > in the DVD architecture, but it would definitely have helped. Say > players always decrypted the media key inside an epoxied ASIC and > kept player master key and decryption algorithm buried there. Ok, I can see I need to expand on this point. First, let me note that Hollywood has decided, in their infinite wisdom, to make software players available. This greatly affects the analysis. So, let's consider two cases: - Software players exist. Then, strong crypto is irrelevant; you just run the program in a debugger, and out pops the key. One cannot stop even casual copying. - Only hardware players are manufactured; there aren't any software players. Then, yes, crypto can keep the keys secret, and I agree that it may be possible to do a reasonable job of securing DVD's against casual copying. HOWEVER, no matter how tamperproof your hardware is, you cannot stop mass piracy by dedicated individuals: bit-level copying is always possible, no matter how heavily you encrypt the content, control the keys, or recall players. In other words, crypto can at best prevent casual copying, and even then only if you are willing to avoid building software players; as I stated in my declaration, crypto can never prevent mass piracy. This is fundamental. This is unavoidable. It may be unpleasant, but it's the way things are, and we're just going to have to deal with it. On the other hand, you are quite right that Hollywood could have prevented casual copying, and apparently decided not to do so; presumably they decided the increased revenues associated with software players more than outstrip the losses from piracy. From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 23 02:32:26 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id CAA13616 for dvd-discuss-outgoing; Wed, 23 Aug 2000 02:32:26 -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 CAA13613 for ; Wed, 23 Aug 2000 02:32:25 -0400 Received: from mit.edu (h0050da62b39d.ne.mediaone.net [24.147.217.121]) by chmls05.mediaone.net (8.8.7/8.8.7) with ESMTP id CAA17043; Wed, 23 Aug 2000 02:32:34 -0400 (EDT) Message-ID: <39A37077.3EA4FD3@mit.edu> Date: Wed, 23 Aug 2000 02:34:31 -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] OpenCSS - A new open standard for content protection References: <39A30B91.1211DA6E@uic.edu> <8nv8ho$nlk$1@blowfish.isaac.cs.berkeley.edu> <8nvq4n$o46$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: > > Ron Gustavson wrote: > > On 22 Aug 2000 18:14:32 -0700, (David A. Wagner) wrote: > > >And yet, if you obtained the appropriate CSS keys through some nefarious > > >means, couldn't you use your hypothetical OpenCSS program to obtain access > > >to watch Time Warner's movies and have a firewire digital output of them? > > >Aren't you running the risk that this alone will be enough to convince the > > >Kaplans of the world that OpenCSS can be used to circumvent? > > > > Could even happen through non-nefarious accident. Firewire would be a > > nice convenience, but let's get rid of Macrovision first. Component and > > S-video will do fine for now. > > But my point stands. Replace ``OpenCSS supports digital firewall output'' > with ``OpenCSS supports Macrovision-free outputs'' (or ``OpenCSS supports > S-video''), and you still have a danger that OpenCSS will be viewed as > circumvention technology that can do something with the DVD content that > regular DVD players can't. That mere act of outputting Macrovision-free > (or S-video, or Component) versions of the copyrighted works, when normal > CSS-licensed DVD players are forbidden to do so, might be construed as an > act of circumvention. After all, the reason for those limitations in the > CSS license are ostensibly to prevent copyright piracy. OpenCSS, in the ordinary course of its operation, supports none of those things unless a copyright owner authorizes it by creating an OpenCSS authorization key and encrypting a disk key that can be accessed with that key. Yes, OpenCSS can be used to circumvent if From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 23 02:38:36 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id CAA13694 for dvd-discuss-outgoing; Wed, 23 Aug 2000 02:38:36 -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 CAA13691 for ; Wed, 23 Aug 2000 02:38:35 -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 XAA24874 for ; Tue, 22 Aug 2000 23:38:26 -0700 Received: (from daw@localhost) by blowfish.isaac.cs.berkeley.edu (8.8.7/8.8.7) id XAA24814; Tue, 22 Aug 2000 23:38:31 -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] 40-bit encryption (Was Re: code as speech) Date: 22 Aug 2000 23:38:21 -0700 Organization: A poorly-installed InterNetNews site Lines: 19 Distribution: isaac Message-ID: <8nvrgt$o7d$1@blowfish.isaac.cs.berkeley.edu> References: <8nui25$m7u$1@blowfish.isaac.cs.berkeley.edu> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Arnold G. Reinhold wrote: > I think it is important to point out that copyright owners did and do > have effective, if not perfect, technological means to protect their > content and that MPAA was really negligent in their design. By the way, in case this wasn't clear from my previous email, I have to agree with this remark. From a technical standpoint, the cryptographic design in CSS was incredibly shoddy. (A LFSR-based stream cipher susceptible to divide-and-conquer attacks? Come on, guys, divide-and-conquer attacks should be known to anyone who has ever studied stream cipher cryptanalysis. And, designing your own home-brew cipher? That's one of the oldest mistakes in the books...) That shoddiness was one of the most surprising revelations associated with DeCSS, IMHO. Of course, it is hardly unprecedented to find bad crypto in proprietary products, but crypto _this_ bad is not so common. In any case, I still believe that there is a strong public interest in this type of information: to quote Brandeis (was it?), "Sunlight is the best disinfectant". From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 23 02:45:49 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id CAA13765 for dvd-discuss-outgoing; Wed, 23 Aug 2000 02:45:49 -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 CAA13762 for ; Wed, 23 Aug 2000 02:45:48 -0400 Received: from mit.edu (h0050da62b39d.ne.mediaone.net [24.147.217.121]) by chmls05.mediaone.net (8.8.7/8.8.7) with ESMTP id CAA18619; Wed, 23 Aug 2000 02:45:58 -0400 (EDT) Message-ID: <39A3739B.FF46ACD6@mit.edu> Date: Wed, 23 Aug 2000 02:47:55 -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] OpenCSS - A new open standard for content protection References: <39A30B91.1211DA6E@uic.edu> <8nv8ho$nlk$1@blowfish.isaac.cs.berkeley.edu> <8nvq4n$o46$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 Ignore the last message I sent. It was accidentally sent before I was finished. "David A. Wagner" wrote: > > Ron Gustavson wrote: > > On 22 Aug 2000 18:14:32 -0700, (David A. Wagner) wrote: > > >And yet, if you obtained the appropriate CSS keys through some nefarious > > >means, couldn't you use your hypothetical OpenCSS program to obtain access > > >to watch Time Warner's movies and have a firewire digital output of them? > > >Aren't you running the risk that this alone will be enough to convince the > > >Kaplans of the world that OpenCSS can be used to circumvent? > > > > Could even happen through non-nefarious accident. Firewire would be a > > nice convenience, but let's get rid of Macrovision first. Component and > > S-video will do fine for now. > > But my point stands. Replace ``OpenCSS supports digital firewall output'' > with ``OpenCSS supports Macrovision-free outputs'' (or ``OpenCSS supports > S-video''), and you still have a danger that OpenCSS will be viewed as > circumvention technology that can do something with the DVD content that > regular DVD players can't. That mere act of outputting Macrovision-free > (or S-video, or Component) versions of the copyrighted works, when normal > CSS-licensed DVD players are forbidden to do so, might be construed as an > act of circumvention. After all, the reason for those limitations in the > CSS license are ostensibly to prevent copyright piracy. OpenCSS, in the ordinary course of its operation, supports none of those things unless a copyright owner authorizes it by creating an OpenCSS authorization key and encrypting a disk key that can be accessed with that key. Yes, OpenCSS can be used to circumvent if someone obtains a DVD CCA key and uses it with an OpenCSS player, but: 1) OpenCSS is not produced, marketed, or designed for that purpose. The OpenCSS do not distribute the DVD CCA keys or even tell OpenCSS users where to obtain them. The goal of OpenCSS is to compete with CSS in the "effective access control market." A key part of OpenCSS's competitive strategy is to embrace the CSS standard, so that disk producers and copyright owners do not have significant additional costs if they wish to support OpenCSS players. 2) If OpenCSS is a circumvention device, so is any software DVD player. Assuming even one OpenCSS DVD exists (and I'm sure many would be willing to produce small runs of them), a software DVD player could be modified so that an OpenCSS authorization key is put in the place of the DVD CCA key. This software DVD player would now be capable of accessing OpenCSS content when it is not authorized to do so (the same way the OpenCSS player can gain unauthorized access to DVD CCA content if it is supplied with a key it is not authorized to use). Either both DVD CCA players and OpenCSS players are circumvention devices, or neither of them are. If both of them are, someone is going to have to explain to people why they cannot use their software DVD players anymore. - Ravi Nanavati From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 23 02:52:09 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id CAA13886 for dvd-discuss-outgoing; Wed, 23 Aug 2000 02:52:09 -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 CAA13883 for ; Wed, 23 Aug 2000 02:52:08 -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 XAA24937 for ; Tue, 22 Aug 2000 23:52:00 -0700 Received: (from daw@localhost) by blowfish.isaac.cs.berkeley.edu (8.8.7/8.8.7) id XAA24849; Tue, 22 Aug 2000 23:52:04 -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] OpenCSS - A new open standard for content protection Date: 22 Aug 2000 23:51:54 -0700 Organization: A poorly-installed InterNetNews site Lines: 42 Distribution: isaac Message-ID: <8nvsaa$o8g$1@blowfish.isaac.cs.berkeley.edu> References: <39A30B91.1211DA6E@uic.edu> <8nv8ho$nlk$1@blowfish.isaac.cs.berkeley.edu> <39A34B41.6936596A@mit.edu> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Ravi Nanavati wrote: > "David A. Wagner" wrote: > > And yet, if you obtained the appropriate CSS keys through some nefarious > > means, couldn't you use your hypothetical OpenCSS program to obtain access > > to watch Time Warner's movies and have a firewire digital output of them? > > Aren't you running the risk that this alone will be enough to convince the > > Kaplans of the world that OpenCSS can be used to circumvent? > > If people access Time Warner's movies with OpenCSS, they may individually > be guilty of circumvention but OpenCSS is not a circumvention device. What makes you think the DMCA supports such a distinction? 1201(b)(1)(B) seems to say that, if a device can be used for circumvention, and if it has no commercially significant use (e.g., if it is free software!), you may be prohibited from trafficking in that device. Perhaps I am misreading the law, but my interpretation does not seem at all implausible. `(b) ADDITIONAL VIOLATIONS- (1) No 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 protection afforded by a technological measure that effectively protects a right of a copyright owner under this title in a work or a portion thereof; `(B) has only limited commercially significant purpose or use other than to circumvent protection afforded by a technological measure that effectively protects a right of a copyright owner under this title in a work or a portion thereof; or `(C) is marketed by that person or another acting in concert with that person with that person's knowledge for use in circumventing protection afforded by a technological measure that effectively protects a right of a copyright owner under this title in a work or a portion thereof. From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 23 02:55:46 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id CAA13929 for dvd-discuss-outgoing; Wed, 23 Aug 2000 02:55:46 -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 CAA13926 for ; Wed, 23 Aug 2000 02:55:45 -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 XAA24959 for ; Tue, 22 Aug 2000 23:55:36 -0700 Received: (from daw@localhost) by blowfish.isaac.cs.berkeley.edu (8.8.7/8.8.7) id XAA24873; Tue, 22 Aug 2000 23:55:41 -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] OpenCSS - A new open standard for content protection Date: 22 Aug 2000 23:55:31 -0700 Organization: A poorly-installed InterNetNews site Lines: 21 Distribution: isaac Message-ID: <8nvsh3$o98$1@blowfish.isaac.cs.berkeley.edu> References: <39A30B91.1211DA6E@uic.edu> <8nvq4n$o46$1@blowfish.isaac.cs.berkeley.edu> <39A37077.3EA4FD3@mit.edu> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Ravi Nanavati wrote: > OpenCSS, in the ordinary course of its operation, supports none of those > things unless a copyright owner authorizes it by creating an OpenCSS > authorization key and encrypting a disk key that can be accessed with > that key. But Kaplan has ruled that the mere presence of a key does not imply authorization. After all, the key may have been obtained unlawfully, and in that case, OpenCSS could be used for circumvention; in this respect, it would be the same as DeCSS. In fact, Kaplan has even implied in his decision that the only lawful way to obtain the key (and authorization) is through the DVDCCA. Moreover, he has used language to suggest that perhaps `authority' should be interpreted as `consent'. Ok, granted, this may sound ridiculous, and maybe it'll be overturned on appeal, but that's what the decision seemed to suggest. Now what happens if Hollywood tells Kaplan that they have not consented to your use of OpenCSS, and they tell Kaplan that it could be used for circumvention, and that it has no other commercially significant purpose? Uh-oh.... From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 23 02:59:30 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id CAA13972 for dvd-discuss-outgoing; Wed, 23 Aug 2000 02:59:30 -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 CAA13969 for ; Wed, 23 Aug 2000 02:59:29 -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 XAA24989 for ; Tue, 22 Aug 2000 23:59:20 -0700 Received: (from daw@localhost) by blowfish.isaac.cs.berkeley.edu (8.8.7/8.8.7) id XAA24901; Tue, 22 Aug 2000 23:59:25 -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] OpenCSS - A new open standard for content protection Date: 22 Aug 2000 23:58:17 -0700 Organization: A poorly-installed InterNetNews site Lines: 12 Distribution: isaac Message-ID: <8nvsm9$oa4$1@blowfish.isaac.cs.berkeley.edu> References: <39A30B91.1211DA6E@uic.edu> <8nvq4n$o46$1@blowfish.isaac.cs.berkeley.edu> <39A3739B.FF46ACD6@mit.edu> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Ravi Nanavati wrote: > 2) If OpenCSS is a circumvention device, so is any software DVD player. I am not nearly as confident as you seem to be that Kaplan would agree. First, Hollywood presumably has consented to use of so-called `legitimate' software DVD players; they might not be so willing to consent to OpenCSS. Second, the `legitimate' software DVD players have a commercially significant non-circumvention use; you might have a harder time proving that the non-circumvention uses of OpenCSS have the same level of commercial significance. From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 23 03:07:08 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id DAA14067 for dvd-discuss-outgoing; Wed, 23 Aug 2000 03:07:08 -0400 Received: from abraham.cs.berkeley.edu (abraham.CS.Berkeley.EDU [128.32.37.121]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id DAA14064 for ; Wed, 23 Aug 2000 03:07:07 -0400 Received: from blowfish.isaac.cs.berkeley.edu (blowfish.isaac.cs.berkeley.edu [169.229.3.195]) by abraham.cs.berkeley.edu (8.8.6/8.8.6) with ESMTP id AAA25067 for ; Wed, 23 Aug 2000 00:06:59 -0700 Received: (from daw@localhost) by blowfish.isaac.cs.berkeley.edu (8.8.7/8.8.7) id AAA24975; Wed, 23 Aug 2000 00:07:03 -0700 To: dvd-discuss@eon.law.harvard.edu Path: not-for-mail From: daw@cs.berkeley.edu (David A. Wagner) Newsgroups: isaac.lists.dvd-discuss Subject: Re: [dvd-discuss] 40-bit encryption (Was Re: code as speech) Date: 23 Aug 2000 00:06:53 -0700 Organization: A poorly-installed InterNetNews site Lines: 20 Distribution: isaac Message-ID: <8nvt6d$oce$1@blowfish.isaac.cs.berkeley.edu> References: <8nui25$m7u$1@blowfish.isaac.cs.berkeley.edu> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Arnold G. Reinhold wrote: > I think it is important to point out that copyright owners did and do > have effective, if not perfect, technological means to protect their > content and that MPAA was really negligent in their design. By the way, I just remembered an excerpt from Kaplan's decision which may be of some relevance to your remark: "Development and implementation of a new DVD copy protection system, however, is far more difficult and costly than reprogramming a combination lock and may carry with it the added problem of rendering the existing installed base of compliant DVD players obsolete." One could argue that the designers had their chance to get it right the first time and that if they did a truly negligent job the first time, the cost of building a replacement should not be held against the defendants. Probably this is not a very compelling argument, because I didn't get the impression that Kaplan would have changed his decision even if fixing CSS were cheap, but I thought I would mention it anyway. From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 23 05:07:04 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id FAA14881 for dvd-discuss-outgoing; Wed, 23 Aug 2000 05:07:04 -0400 Received: from mail.lemuria.org (lemuria.borgfelde.ricardo.de [195.244.103.65]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id FAA14876 for ; Wed, 23 Aug 2000 05:07:01 -0400 Received: from lemuria.org by mail.lemuria.org via rsmtp with bsmtp id for ; Wed, 23 Aug 2000 10:57:34 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Received: by lemuria.org via sendmail with stdio id for dvd-discuss@eon.law.harvard.edu; Wed, 23 Aug 2000 10:14:00 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Date: Wed, 23 Aug 2000 10:14:00 +0200 From: Tom Vogt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] OpenCSS - A new open standard for content protection Message-ID: <20000823101400.A27711@lemuria.org> References: <39A2E79B.F882BBDC@uic.edu> <8nuvih$ml7$1@blowfish.isaac.cs.berkeley.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0pre3i In-Reply-To: <8nuvih$ml7$1@blowfish.isaac.cs.berkeley.edu> X-Privacy: If you can, please encrypt your mails - finger for key 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: > Ahh, so OpenCSS is to be a circumvention device! :-) > > At least, that's what Hollywood will say. After all, if OpenCSS allows > firewire digital output and Hollywood didn't want that, then they'll argue > that you are building a circumvention tool. so now everything that someone doesn't like is a circumvention device? it should be easy to show that this is streching the law a little too far. what EXACTLY is it that opencss would circumvent? a market division and price fixing mechanism? -- "The net treats censorship as a malfunction and re-routes around it." (John Gilmore) From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 23 05:07:04 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id FAA14887 for dvd-discuss-outgoing; Wed, 23 Aug 2000 05:07:04 -0400 Received: from mail.lemuria.org (lemuria.borgfelde.ricardo.de [195.244.103.65]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id FAA14880 for ; Wed, 23 Aug 2000 05:07:03 -0400 Received: from lemuria.org by mail.lemuria.org via rsmtp with bsmtp id for ; Wed, 23 Aug 2000 10:57:34 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Received: by lemuria.org via sendmail with stdio id for dvd-discuss@eon.law.harvard.edu; Wed, 23 Aug 2000 10:33:09 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Date: Wed, 23 Aug 2000 10:33:09 +0200 From: Tom Vogt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Errors and flaws in Kaplan's opinion Message-ID: <20000823103309.B27711@lemuria.org> References: <39A3062C.CD924B9@swbell.net> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0pre3i In-Reply-To: <39A3062C.CD924B9@swbell.net> X-Privacy: If you can, please encrypt your mails - finger for key Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Jolley wrote: > Also, I would say that these transmission times are NOT readily > available. real-life example: we recently copied our production database to a new test system. due to circumstances, we had to do so over a 2mbit line. we did it during the night (negligable other activity on the line) and it took several hours. the db was about 8 gb large, and thus very well comparable to a dvd in size. I don't know anyone who has 2 mbit for his exclusive use available privately. furthermore, when copying over the internet, there are latency, packet loss and other issues to cope with that you don't have on a direct link. > On page 24. > k>But the creation of pirated copies of copyrighted movies on writeable > k>CD-ROMs, although significant, .... I wouldn't doubt this. however, it's got nothing whatsoever to do with decss. I know of several cdrom pirate copies of movies. I'm fairly sure I could get hold of at least one on short notice if required. however, all the pirate movies I'm aware of were NOT created with DeCSS. they were captured on camcorders in theatres, or digitized from VHS tapes or other ways like that. see, if you're encoding your pirate movie in 320x240 shoddy quality mpeg (which you'll have to do to fit it on a cdrom) then why in all hell would you want to go through all the trouble dvds create? your output quality is pretty crappy anyways, so your input quality doesn't matter much. and putting a digital camera in front of the tv and hitting the play button on your vcr is much simpler than running some ripper software on a dvd, decryting audio and video streams, reassembling them, synchronizing them and re-encoding everything into an mpeg (or divx, whatever). as I understand the technical process, it can be done, but there's a lot of steps involved. you also lose all the advantages of a dvd (multi-language, selectable subtitles, chapter selection, etc). so there is absolutely no reason to use a dvd as the input medium. video piracy is real. but putting decss in that pool was a brilliant rhetorical move, even though it's just true enough to avoid libel counter-suits (because it CAN, in theory, be used for such a purpose). > This may be a small point, but, I don't think you can say absolutely > that digital files > can be copied without degradation from generation to generation. Errors > can > and do happen when transferring digital data. almost every transfer has error-correction. I think it is correct to say that digital copies are perfect. while in theory there are errors, it doesn't really happen in practice. all your programs are digital, too. and while a single bit error on a picture or .mp3 wouldn't be noticed, a single bit in an executable would often lead to a crash. you can test that. take a text file. write a short shell script that copies that file a million times from one partition to the next (to ensure that actual, physical copying is being done, not just inode switching). make sure you disable disk caching (again, to ensure that actual copying is being performed). after the 1,000,000 copy, run diff against the original file. I haven't tested this, but I'm fairly sure they would be identical. -- "The net treats censorship as a malfunction and re-routes around it." (John Gilmore) From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 23 07:25:48 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id HAA16153 for dvd-discuss-outgoing; Wed, 23 Aug 2000 07:25:48 -0400 Received: from hotmail.com (f241.law3.hotmail.com [209.185.241.241]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id HAA16150 for ; Wed, 23 Aug 2000 07:25:47 -0400 Received: from mail pickup service by hotmail.com with Microsoft SMTPSVC; Wed, 23 Aug 2000 04:25:25 -0700 Received: from 192.38.120.165 by lw3fd.law3.hotmail.msn.com with HTTP; Wed, 23 Aug 2000 GMT X-Originating-IP: [192.38.120.165] From: "Claus Adamsen" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] code as speech Date: Wed, 23 Aug 2000 13:25:25 CEST Mime-Version: 1.0 Content-Type: text/plain; format=flowed Message-ID: X-OriginalArrivalTime: 23 Aug 2000 11:25:25.0989 (UTC) FILETIME=[D5806950:01C00CF4] Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Wed, 23 Aug 2000, sam th wrote: On Mon, 21 Aug 2000, Bryan Taylor wrote: > > > > > --- Lars Gaarden wrote: > > > I thought this had already been covered. > > > > > > RE for the purpose of interoperability is allowed both in Germany and > > > Norway. You do _not_ lose this right even if you sign a contract or > > > click an EULA that states otherwise. > > > > This has been asserted, but I haven't seen the legal citation for it. I > > have seen one for EU law, but I don't know that that really binds > > Norway. Certainly we all hope it's this way. The DVD-CCA will certainly > > not stipulate to it, though. > > > >Well, EU law cites will have little effect, as last I knew Norway was a >holdout from joining. :-) > Norway has indeed not joined the EU, but IS a member of the European Economic Area (EEA). The EEA treaty obligates Norway to implement a lot of EU legislation in national law - including the Software Directive (directive 91/250), which allows certain acts of RE. The rules contained in the directive are presently contained in the Norwegian Copyright Act. Claus Adamsen ________________________________________________________________________ Get Your Private, Free E-mail from MSN Hotmail at http://www.hotmail.com From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 23 08:57:26 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id IAA16674 for dvd-discuss-outgoing; Wed, 23 Aug 2000 08:57:26 -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 IAA16671 for ; Wed, 23 Aug 2000 08:57:24 -0400 Received: from localhost (ssyreeni@localhost) by kruuna.Helsinki.FI (8.10.1/8.10.1) with ESMTP id e7NCvU309129 for ; Wed, 23 Aug 2000 15:57:30 +0300 (EET DST) X-Authentication-Warning: kruuna.Helsinki.FI: ssyreeni owned process doing -bs Date: Wed, 23 Aug 2000 15:57:29 +0300 (EET DST) From: Sampo A Syreeni To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] 40-bit encryption (Was Re: code as speech) In-Reply-To: Message-ID: MIME-Version: 1.0 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 On Tue, 22 Aug 2000, Arnold G. Reinhold wrote: >>Remember the other reason for a weak encryption is the real time >>decrypting and processing of the information. These standards were >>set in 1996. Computing power has come a way since then. Most of >>this was done in order to keep cost low for players. > >I believe strong encryption was feasible and affordable in this >application even way back in 1996. Absolutely. The CSS people use dedicated ASIC implementations, so performance has not been a big problem since the beginning of the 90s. Besides, using a garden variety DES implementation would have bought them readily availableôcircuits and superior security. Sampo Syreeni , aka decoy, student/math/Helsinki university From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 23 08:58:58 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id IAA16767 for dvd-discuss-outgoing; Wed, 23 Aug 2000 08:58:58 -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 IAA16764 for ; Wed, 23 Aug 2000 08:58:57 -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 IAA13459 for ; Wed, 23 Aug 2000 08:59:07 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id IAA20421; Wed, 23 Aug 2000 08:59:07 -0400 (EDT) Date: Wed, 23 Aug 2000 08:59:07 -0400 (EDT) Message-Id: <200008231259.IAA20421@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] /. comment on copy-protection developments Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Slashdot just posted an article on some recent comments by Steve Heckler, a senior VP at Sony pictures, who recently said: We will develop technology that transcends the individual user. We will firewall Napster at source -- we will block it at your cable company, we will block it at your phone company, we will block it at your [Internet-service provider]. We will firewall it at your PC. The comments include the following interesting writeup on the "Copy Protection Technical Working Group", http://dvcc.com/cptwg, which can be accessed directly as http://slashdot.org/comments.pl?sid=00/08/23/0212232&cid=86 It describes, among other things, interesting plans for copy-protecting signals right out to monitors (via a digital interface scheme for communications between computers and monitors called DVI, now under development). The full comments from the story are at http://slashdot.org/comments.pl?sid=00/08/23/0212232 and may be worth reading even for folks here who don't ordinarily bother with Slashdot. I'll close with some words from another comment: I'm profoundly disturbed by the way "people" and "citizens" have been transformed - both in this discussion and in political discourse at large - into "consumers". I would expect those at the top of the economic food chain to think of the masses as nothing but consumers of product, but it's scary that many (most?) people have come to think of themselves that way. This is a plea for people to wake up. "Citizens" have rights and responsibilities, minds and talents and souls. "Consumers" have disposable income and a valuable database of spending preferences. By transforming citizens into consumers, we have laid the foundation for a new government based entirely on money. It's becoming more apparent every day. The frightening part is that we see it coming, but we feel we have no way to stop it, perhaps even no right to stop it. From what divine or constitutional source did Sony get the right to an uninterrupted "revenue stream"? Where did we as a society come up with the vocabulary that says a corporation has a "right" to anything at all? Particularly since the largest of them don't seem to have very many accompanying responsibilities. rst From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 23 09:20:44 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA16888 for dvd-discuss-outgoing; Wed, 23 Aug 2000 09:20:44 -0400 Received: from smtp02.primenet.com (smtp02.primenet.com [206.165.6.132]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id JAA16885 for ; Wed, 23 Aug 2000 09:20:42 -0400 Received: (from daemon@localhost) by smtp02.primenet.com (8.9.3/8.9.3) id GAA01063 for ; Wed, 23 Aug 2000 06:18:43 -0700 (MST) Received: from sessions.phx.primenet.com(206.132.239.114), claiming to be "heorot.lumbercartel.com" via SMTP by smtp02.primenet.com, id smtpdAAAt5aq4b; Wed Aug 23 06:18:30 2000 Received: from frankenstein.lumbercartel.com (IDENT:dcs@frankenstein.lumbercartel.com [192.168.6.2]) by heorot.lumbercartel.com (8.9.3/8.8.7) with SMTP id GAA26519 for ; Wed, 23 Aug 2000 06:20:32 -0700 From: "D. C. Sessions" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] OpenCSS - A new open standard for content protection Date: Wed, 23 Aug 2000 06:18:50 -0700 X-Mailer: KMail [version 1.0.29] Content-Type: text/plain References: <39A30B91.1211DA6E@uic.edu> <8nvq4n$o46$1@blowfish.isaac.cs.berkeley.edu> <39A3739B.FF46ACD6@mit.edu> In-Reply-To: <39A3739B.FF46ACD6@mit.edu> MIME-Version: 1.0 Message-Id: <00082306203001.17389@frankenstein.lumbercartel.com> Content-Transfer-Encoding: 8bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, 22 Aug 2000, Ravi Nanavati wrote: > 1) OpenCSS is not produced, marketed, or designed for that purpose. You *say* that that's not its purpose. But, just like JJ in _Universal_v_Corley_, the Court knows better. All the rest is just a pretext for distributing a circumvention device. -- | Microsoft: "A reputation for releasing inferior software will make | | it more difficult for a software vendor to induce customers to pay | | for new products or new versions of existing products." | +----------- D. C. & M. V. Sessions ----------+ From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 23 10:46:53 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA17647 for dvd-discuss-outgoing; Wed, 23 Aug 2000 10:46:53 -0400 Received: from mail.lemuria.org (lemuria.borgfelde.ricardo.de [195.244.103.65]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id KAA17644 for ; Wed, 23 Aug 2000 10:46:51 -0400 Received: from lemuria.org by mail.lemuria.org via rsmtp with bsmtp id for ; Wed, 23 Aug 2000 16:37:45 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Received: by lemuria.org via sendmail with stdio id for dvd-discuss@eon.law.harvard.edu; Wed, 23 Aug 2000 11:02:39 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Date: Wed, 23 Aug 2000 11:02:39 +0200 From: Tom Vogt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] OpenCSS - A new open standard for content protection Message-ID: <20000823110239.A27854@lemuria.org> References: <39A30B91.1211DA6E@uic.edu> <8nvq4n$o46$1@blowfish.isaac.cs.berkeley.edu> <39A3739B.FF46ACD6@mit.edu> <8nvsm9$oa4$1@blowfish.isaac.cs.berkeley.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0pre3i In-Reply-To: <8nvsm9$oa4$1@blowfish.isaac.cs.berkeley.edu> X-Privacy: If you can, please encrypt your mails - finger for key Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu daw@cs.berkeley.edu (David A. Wagner) wrote: > First, Hollywood presumably has consented to use of so-called `legitimate' > software DVD players; they might not be so willing to consent to OpenCSS. since CSS is not patented, this is irrelevant because hollywood does NOT have exclusive control over the use of CSS *technology*. can I write a CSS encryption/decryption plugin for, say ssh, so that my remote shells are encrypted with CSS instead of blowfish or idea? would that be illegal? (aside from stupid, because CSS is so crappy) -- "The net treats censorship as a malfunction and re-routes around it." (John Gilmore) From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 23 11:20:51 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA18031 for dvd-discuss-outgoing; Wed, 23 Aug 2000 11:20:51 -0400 Received: from life.ai.mit.edu (life.ai.mit.edu [128.52.32.80]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id LAA18028 for ; Wed, 23 Aug 2000 11:20:50 -0400 Received: from soggy-fibers.ai.mit.edu (soggy-fibers [128.52.32.48]) by life.ai.mit.edu (8.9.3/8.9.3/AI2.13/ai.master.life:2.21) with ESMTP id LAA28593 for ; Wed, 23 Aug 2000 11:21:01 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id LAA21026; Wed, 23 Aug 2000 11:21:00 -0400 (EDT) Date: Wed, 23 Aug 2000 11:21:00 -0400 (EDT) Message-Id: <200008231521.LAA21026@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] OpenCSS - A new open standard for content protection In-Reply-To: <20000823110239.A27854@lemuria.org> References: <39A30B91.1211DA6E@uic.edu> <8nvq4n$o46$1@blowfish.isaac.cs.berkeley.edu> <39A3739B.FF46ACD6@mit.edu> <8nvsm9$oa4$1@blowfish.isaac.cs.berkeley.edu> <20000823110239.A27854@lemuria.org> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Tom Vogt writes: > daw@cs.berkeley.edu (David A. Wagner) wrote: > > First, Hollywood presumably has consented to use of so-called `legitimate' > > software DVD players; they might not be so willing to consent to OpenCSS. > > since CSS is not patented, this is irrelevant because hollywood does NOT > have exclusive control over the use of CSS *technology*. Well, it looks an awful lot to some of us as if the MPAA is claiming that the DMCA gave them control over the CSS technology --- basing their claim on the definition of circumvention in the law, which reads in part "decryption ... without authority of the copyright owner". This looks bogus to a lot of us both because the CSS stream cipher is dreadful, and because anyone can legally get access to a key. The "OpenCSS" thing is a way of testing the limits of the authority which the MPAA is claiming --- to see if it extends to the cipher, and not just the keys. However, as such, it could conceivably play into their hands: Well, we can't object to distribution of this thing *so long as it can't be used to view any of our movies*. Distribution of our keys would, of course, be plain circumvention, and we will come down like a ton of bricks on anyone who tries. We're puzzled by the use of the same stream cipher as in CSS, after all the nonsense we heard about the poor quality of that cipher. But that's a moot point, now that the open source community has accepted our right to control technology which embodies the cryptographic keys used to protect our works in any manner we see fit. This is, of course, a very different line from the (also viable) counterargument which dcs and daw have been using --- that OpenCSS is a circumvention tool in disguise. But I think it's a much more dangerous one, because the defense of "openCSS" is entirely consistent with the notion, implied by the MPAA's brief and stated outright by Kaplan, that the DMCA overturned Universal v. Sony (despite the expressed intensions of the people who wrote it!). And let's remember that that's what we're after here --- the right to build and distribute our own players for DVDs that we have legally purchased. (No, I don't think the movie studios themselves will use "OpenCSS" for their own titles --- according to Jim Taylor, they considered and rejected any such scheme long ago because it's too inconvenient for the users to have to bother with the keys. Never mind what they think of the provenance). rst From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 23 11:28:03 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA18468 for dvd-discuss-outgoing; Wed, 23 Aug 2000 11:28:03 -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 LAA18448 for ; Wed, 23 Aug 2000 11:28:01 -0400 Received: from localhost (ssyreeni@localhost) by kruuna.Helsinki.FI (8.10.1/8.10.1) with ESMTP id e7NFS9b26447 for ; Wed, 23 Aug 2000 18:28:09 +0300 (EET DST) X-Authentication-Warning: kruuna.Helsinki.FI: ssyreeni owned process doing -bs Date: Wed, 23 Aug 2000 18:28:08 +0300 (EET DST) From: Sampo A Syreeni To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] more errors in Kaplan's In-Reply-To: <20000822211221.5003.qmail@web511.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, 22 Aug 2000, Bryan Taylor wrote: [ 8< On circumventing a click-wrap and probable MPAA response 8< ] >Oh my god! So now if you take steps to avoid accepting an offer to >engage in a contract, then you are bound by it's terms? It is just >unbelievable that this stuff doesn't get laughed out of court. Indeed. A sensible person would construe this as evidence against the enforceability of a trade secret status for data disclosed in a software product only covered by a click-wrap licence... Sampo Syreeni , aka decoy, student/math/Helsinki university From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 23 11:34:21 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA19021 for dvd-discuss-outgoing; Wed, 23 Aug 2000 11:34:21 -0400 Received: from hotmail.com (f29.law9.hotmail.com [64.4.9.29]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id LAA19018 for ; Wed, 23 Aug 2000 11:34:19 -0400 Received: from mail pickup service by hotmail.com with Microsoft SMTPSVC; Wed, 23 Aug 2000 08:33:55 -0700 Received: from 128.244.34.133 by lw9fd.law9.hotmail.msn.com with HTTP; Wed, 23 Aug 2000 GMT X-Originating-IP: [128.244.34.133] From: "Harold Eaton" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] OpenCSS - A new open standard for content protection Date: Wed, 23 Aug 2000 11:33:55 EDT Mime-Version: 1.0 Content-Type: text/plain; format=flowed Message-ID: X-OriginalArrivalTime: 23 Aug 2000 15:33:55.0711 (UTC) FILETIME=[8C6370F0:01C00D17] Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu D. C. Sessions wrote: >On Tue, 22 Aug 2000, Ravi Nanavati wrote: > > > 1) OpenCSS is not produced, marketed, or designed for that purpose. > >You *say* that that's not its purpose. But, just like JJ in >_Universal_v_Corley_, >the Court knows better. All the rest is just a pretext for distributing a >circumvention >device. I think that we can waste a lot of time discussing how this court would act. However it is pointless because this court (a) does not use logical arguments (b) falsifies facts as necessary and (c) ignores evidence, case law, and statute language contrary to its predetermined conclusions. ________________________________________________________________________ Get Your Private, Free E-mail from MSN Hotmail at http://www.hotmail.com From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 23 11:39:06 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA19156 for dvd-discuss-outgoing; Wed, 23 Aug 2000 11:39:06 -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 LAA19153 for ; Wed, 23 Aug 2000 11:39:04 -0400 Message-ID: <20000823153844.22952.qmail@web515.mail.yahoo.com> Received: from [131.44.121.4] by web515.mail.yahoo.com; Wed, 23 Aug 2000 08:38:44 PDT Date: Wed, 23 Aug 2000 08:38:44 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] more errors in Kaplan's To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-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: > Bryan Taylor wrote: > > To qualify as a TPM a measure has to require application of > > information with the authority of the copyright holder to gain > access to the work. > > Sure, of course there are. Take your favorite technique for access > control; there are many which don't use cryptography. (Access control > is an important subfield of computer security.) Maybe I'm being a bonehead, but I can't think of any. I'm including hashing functions typical of password schemes under cryptography. To me the point is that you have a key or password. I don't see that in a clickwrap. If a clickwrap is "access control" then so is every hyperlink, power button, and doorknob. Can you throw one out? __________________________________________________ Do You Yahoo!? Yahoo! Mail - Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 23 11:47:00 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA19311 for dvd-discuss-outgoing; Wed, 23 Aug 2000 11:47:00 -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 LAA19282 for ; Wed, 23 Aug 2000 11:46:58 -0400 Message-ID: <20000823154637.2610.qmail@web511.mail.yahoo.com> Received: from [131.44.121.4] by web511.mail.yahoo.com; Wed, 23 Aug 2000 08:46:37 PDT Date: Wed, 23 Aug 2000 08:46:37 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] OpenCSS - A new open standard for content protection To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-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: > And yet, if you obtained the appropriate CSS keys through some > nefarious means, couldn't you use your hypothetical OpenCSS program to > obtain access to watch Time Warner's movies and have a firewire > digital output of them? Aren't you running the risk that this alone > will be enough to convince the Kaplans of the world that OpenCSS can > be used to circumvent? We can't live in fear of tyrannical judges. Reason will win out in the end -- if you cannot rely on this, then all law becomes anarchy. By the reasoning you give above, PGP should be banned, since, no doubt, someone has encrypted their copyrighted work with their own key. The fact that the general program does not contain this key and has legitimate noncircumventing use in that it helps others to exercise their right to use TPM's should be the saving grace. __________________________________________________ Do You Yahoo!? Yahoo! Mail - Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 23 11:58:32 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA19523 for dvd-discuss-outgoing; Wed, 23 Aug 2000 11:58:32 -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 LAA19520 for ; Wed, 23 Aug 2000 11:58:30 -0400 Message-ID: <20000823155810.26737.qmail@web510.mail.yahoo.com> Received: from [131.44.121.4] by web510.mail.yahoo.com; Wed, 23 Aug 2000 08:58:10 PDT Date: Wed, 23 Aug 2000 08:58:10 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] 40-bit encryption (Was Re: code as speech) To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --- "David A. Wagner" wrote: Quoting Kaplan: > "Development and implementation of a new DVD copy protection > system, however, is far more difficult and costly than > reprogramming a combination lock and may carry with it the > added problem of rendering the existing installed base of > compliant DVD players obsolete." Actually, this is precisely why the cryptosystem they used is pathetic. Consider a good system, like RSA, blowfish, etc... . Key comprimization is always a risk. However, because the algorithm is strong, disclosing a key doesn't assist attackers in any way for other keys. This is, in fact, why keys and combinations are used: they CAN be easily changed if compromised. If this isn't true, it's a clue of SERIOUS design flaws. __________________________________________________ Do You Yahoo!? Yahoo! Mail - Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 23 12:10:04 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA19711 for dvd-discuss-outgoing; Wed, 23 Aug 2000 12:10:04 -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 MAA19708 for ; Wed, 23 Aug 2000 12:10:03 -0400 Received: from ip38.bedford2.ma.pub-ip.psi.net ([38.32.10.38]) by relay20.smtp.psi.net with smtp (Exim 3.13 #3) id 13Rd6O-0007Kj-00 for dvd-discuss@eon.law.harvard.edu; Wed, 23 Aug 2000 12:10:09 -0400 From: Ron Gustavson To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] 40-bit encryption (Was Re: code as speech) Date: Wed, 23 Aug 2000 12:03:43 -0400 Message-ID: References: <8nui25$m7u$1@blowfish.isaac.cs.berkeley.edu> <8nvt6d$oce$1@blowfish.isaac.cs.berkeley.edu> In-Reply-To: <8nvt6d$oce$1@blowfish.isaac.cs.berkeley.edu> X-Mailer: Forte Agent 1.8/32.548 MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 8bit X-MIME-Autoconverted: from quoted-printable to 8bit by eon.law.harvard.edu id MAA19709 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On 23 Aug 2000 00:06:53 -0700,(David A. Wagner) wrote: > "Development and implementation of a new DVD copy protection system, > however, is far more difficult and costly than reprogramming a > combination lock and may carry with it the added problem of rendering > the existing installed base of compliant DVD players obsolete." But not necessarily-- (adding key input to the initial VTS.) This could even be redundant from the MPA's perspective: Open CSS key on top of their hardcoded player keys--if they respect the GPL. __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 23 12:09:48 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA19703 for dvd-discuss-outgoing; Wed, 23 Aug 2000 12:09:48 -0400 Received: from relay20.smtp.psi.net (relay20.smtp.psi.net [38.8.20.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id MAA19700 for ; Wed, 23 Aug 2000 12:09:47 -0400 Received: from ip38.bedford2.ma.pub-ip.psi.net ([38.32.10.38]) by relay20.smtp.psi.net with smtp (Exim 3.13 #3) id 13Rd6C-0007KT-00 for dvd-discuss@eon.law.harvard.edu; Wed, 23 Aug 2000 12:09:57 -0400 From: Ron Gustavson To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] 40-bit encryption (Was Re: code as speech) Date: Wed, 23 Aug 2000 12:03:31 -0400 Message-ID: References: <8nui25$m7u$1@blowfish.isaac.cs.berkeley.edu> <8nvr2p$o5p$1@blowfish.isaac.cs.berkeley.edu> In-Reply-To: <8nvr2p$o5p$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 MAA19701 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On 22 Aug 2000 23:30:49 -0700, (David A. Wagner) wrote: > HOWEVER, no matter how tamperproof your hardware is, you cannot stop > mass piracy by dedicated individuals: bit-level copying is always > possible, no matter how heavily you encrypt the content, control the > keys, or recall players. But, when keys are distributed separate from the discs, the piracy equals free replication. (In our OpenCSS prototype, it is likely that many titles would protect only the initial VTS and navigable features, leaving individual VOBs available for fair use purposes. Note these VOBs don't have to be 1.* GB, there can be a lot of smaller ones available for extraction.) >In other words, crypto can at best prevent casual copying, and even then >only if you are willing to avoid building software players; as I stated in >my declaration, crypto can never prevent mass piracy. But it can make it much less profitable. (ie. The pirates are not likely to re-engineer each title to insert keys that aren't there.) >This is fundamental. This is unavoidable. It may be unpleasant, but it's >the way things are, and we're just going to have to deal with it. > >On the other hand, you are quite right that Hollywood could have prevented >casual copying, and apparently decided not to do so; presumably they decided >the increased revenues associated with software players more than outstrip >the losses from piracy. But this decision may not be theirs to make in light of its effect on the trade deficit. Export of IP is--in the estimate of the "copyright industry"--going to amount to a third of the GDP in coming years. The fact that this system was designed by foreign corporations and has a huge effect on the trade deficit...Would you let the Saudis design carbureators for all GM products? __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 23 12:11:16 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA19836 for dvd-discuss-outgoing; Wed, 23 Aug 2000 12:11:16 -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 MAA19833 for ; Wed, 23 Aug 2000 12:11:15 -0400 Received: from ip38.bedford2.ma.pub-ip.psi.net ([38.32.10.38]) by relay20.smtp.psi.net with smtp (Exim 3.13 #3) id 13Rd7d-0007Ld-00 for dvd-discuss@eon.law.harvard.edu; Wed, 23 Aug 2000 12:11:25 -0400 From: Ron Gustavson To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] OpenCSS - A new open standard for content protection Date: Wed, 23 Aug 2000 12:05:00 -0400 Message-ID: <2ft7qs8i9aav1mmeveciv66j1ibfoo18gf@4ax.com> References: <39A30B91.1211DA6E@uic.edu> <8nvq4n$o46$1@blowfish.isaac.cs.berkeley.edu> <39A37077.3EA4FD3@mit.edu> <8nvsh3$o98$1@blowfish.isaac.cs.berkeley.edu> In-Reply-To: <8nvsh3$o98$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 MAA19834 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On 22 Aug 2000 23:55:31 -0700, daw@cs.berkeley.edu (David A. Wagner) wrote: >Moreover, he has used language to suggest that perhaps `authority' >should be interpreted as `consent'. Ok, granted, this may sound >ridiculous, and maybe it'll be overturned on appeal, but that's what >the decision seemed to suggest. Now what happens if Hollywood tells >Kaplan that they have not consented to your use of OpenCSS, and they >tell Kaplan that it could be used for circumvention, and that it has >no other commercially significant purpose? Uh-oh.... But they are free to use OpenCSS as well. (ie: remove their player keys and let the buyer recieve authorization key via Web, 800#, on a postcard, etc.) Because they want to stick with a broken latch when all the horses are out of the barn, and there's 39K kayaks paddling under the Verrazano bridge.... __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 23 12:15:56 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA19938 for dvd-discuss-outgoing; Wed, 23 Aug 2000 12:15:56 -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 MAA19934 for ; Wed, 23 Aug 2000 12:15:55 -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 LAA07598 for ; Wed, 23 Aug 2000 11:16:04 -0500 (CDT) Message-ID: <39A3F951.914A72EF@uic.edu> Date: Wed, 23 Aug 2000 11:18:25 -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: [dvd-discuss] OpenCSS - A new open standard for content protection Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Reaching into the grab bag of arguments ... daw(at)cs.berkeley.edu (David A. Wagner) writes: > And yet, if you obtained the appropriate CSS > keys through some nefarious means, couldn't you > use your hypothetical OpenCSS program to obtain > access to watch Time Warner's movies and have > a firewire digital output of them? If I obtained your login password through some nefarious means, I could break into your computer and/or download all your files? Does this make the FTP and telnet commands in and of themselves circumvention devices? Ron Gustavson writes: > Besides, god knows what they'll be putting into > Firewire in the next couple years. Encryption. OpenCSS is the last chance to beat the industry to market with a non-encrypted digital video format, like SPD/IF for digital audio. Without OpenCSS, there will be no alternative. No one will ever know freedom. daw(at)cs.berkeley.edu (David A. Wagner) writes: > That mere act of outputting Macrovision-free > (or S-video, or Component) versions of the > copyrighted works, when normal CSS-licensed > DVD players are forbidden to do so, might be > construed as an act of circumvention. Whose copyrighted works? We don't provide access to MPAA works. Or are you saying that the MPAA has the right to decide under what terms non-MPAA copyright owners may distribute their works, simply because the MPAA saturated the market with their product first? Couldn't you build an antitrust case around that? daw(at)cs.berkeley.edu (David A. Wagner) writes: > Now what happens if Hollywood tells > Kaplan that they have not consented to your > use of OpenCSS, and they tell Kaplan that it > could be used for circumvention, and that it has > no other commercially significant purpose? Well, first off, don't get me started on Kaplan. I wouldn't count on convincing him of anything. However, in this case I would invite the MPAA to demonstrate the use of OpenCSS to access an MPAA encrypted work. At some point, they are going to have to type in their trade secret key to make it work. Bear in mind that OpenCSS keys are encoded as an alphanumeric string using the digits 0-9, a-v. At no time has any valid CSS key ever been distributed in this form. In order to demonstrate the use of OpenCSS to view an MPAA encrypted work, the MPAA will have to take one of their trade secret keys, apply a process to transform it into a key that is compatable with OpenCSS, then use it. We would ask that they place whatever they typed into the public record, and they would refuse. This would illustrate that their argument is identical to the argument that every computer is a "circumvention device", because if I had your password, I could use it in conjunction with telnet or ftp to break into your computer account. Of course, Kaplan might be too dull to understand this distinction, but perhaps a better judge would. From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 23 12:19:17 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA20007 for dvd-discuss-outgoing; Wed, 23 Aug 2000 12:19:17 -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 MAA20004 for ; Wed, 23 Aug 2000 12:19:16 -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 LAA08405 for ; Wed, 23 Aug 2000 11:19:26 -0500 (CDT) Message-ID: <39A3FA1C.44BF89C5@uic.edu> Date: Wed, 23 Aug 2000 11:21:48 -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] Closing the barn after the barn has been destroyed. Content-Type: text/plain; charset=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: > Because they want to stick with a broken latch > when all the horses are out of the barn, and > there's 39K kayaks paddling under the Verrazano bridge.... It's more like, they insist on "closing the barn door", even though the barn has been blown into pieces by a tornado and all that is standing is the twisted door frame, with the broken door askew ... From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 23 12:20:47 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA20067 for dvd-discuss-outgoing; Wed, 23 Aug 2000 12:20:47 -0400 Received: from world.std.com (root@world-f.std.com [199.172.62.5]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id MAA20064 for ; Wed, 23 Aug 2000 12:20:45 -0400 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 MAA22189 for ; Wed, 23 Aug 2000 12:16:59 -0400 (EDT) Mime-Version: 1.0 Message-Id: In-Reply-To: <8nvr2p$o5p$1@blowfish.isaac.cs.berkeley.edu> References: <8nui25$m7u$1@blowfish.isaac.cs.berkeley.edu> <8nvr2p$o5p$1@blowfish.isaac.cs.berkeley.edu> Date: Wed, 23 Aug 2000 12:16:50 -0400 To: dvd-discuss@eon.law.harvard.edu From: "Arnold G. Reinhold" Subject: Re: [dvd-discuss] 40-bit encryption (Was Re: code as speech) 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 -0700 8/22/2000, David A. Wagner wrote: >Arnold G. Reinhold wrote: > > > I agree with your first point, but I'd like to take issue with your >> second. Strong encryption might not have produced invincible security >> in the DVD architecture, but it would definitely have helped. Say >> players always decrypted the media key inside an epoxied ASIC and >> kept player master key and decryption algorithm buried there. > >Ok, I can see I need to expand on this point. > >First, let me note that Hollywood has decided, in their infinite wisdom, >to make software players available. This greatly affects the analysis. > >So, let's consider two cases: > > - Software players exist. Then, strong crypto is irrelevant; you just > run the program in a debugger, and out pops the key. One cannot stop > even casual copying. > > - Only hardware players are manufactured; there aren't any software players. > Then, yes, crypto can keep the keys secret, and I agree that it may be > possible to do a reasonable job of securing DVD's against casual copying. > HOWEVER, no matter how tamperproof your hardware is, you cannot stop > mass piracy by dedicated individuals: bit-level copying is always > possible, no matter how heavily you encrypt the content, control the > keys, or recall players. > >In other words, crypto can at best prevent casual copying, and even then >only if you are willing to avoid building software players; as I stated in >my declaration, crypto can never prevent mass piracy. > >This is fundamental. This is unavoidable. It may be unpleasant, but it's >the way things are, and we're just going to have to deal with it. Paul Fenimore made a similar point. I think we need Crypto 102 where you learn that you cannot discuss security intelligently without a threat model. I don't know how thoroughly MPAA thought this out, but they face several different piracy threats: mass copying, casual copying of compressed decrypted files, using a video camera to capture a theatrical showing, copying off the video screen, theft by insiders, etc. I think it is reasonable for MPAA to have different responses to each threat. For example, mass copying requires fairly expensive and specialized equipment. They can track those operations down. Their biggest problem may be getting different countries to enforce their laws. Also mass copying presumes retail sales, otherwise who is going to pay for it? There was a story posted a while back on MPAA successful efforts to use private "police" to suppress pirated video sales in the UK. That CSS can't address the mass copying threat or many of the others puts the MPAAs claim of injury in a different perspective, but it does not mean CSS had no proper role or excuse the sloppy job they did. > >On the other hand, you are quite right that Hollywood could have prevented >casual copying, and apparently decided not to do so; presumably they decided >the increased revenues associated with software players more than outstrip >the losses from piracy. Just why they didn't is still an interesting question and gets to an important issue in this case. Maybe they found it was cheaper to hire Congressmen than good ASIC designers. But I really think their senior management just didn't get it. There is a long history, as you in particular know, of bad crypto that only gets fixed when a breach is publicly demonstrated. I would argue that 2600.com and its ilk perform an extremely valuable public service in exposing bad security designs. Bruce Schneier gave a talk at DCSB a couple of weeks ago where he said that you cannot beta test security. That's not quite right. The hacker community are the beta testers. If they were successfully suppressed, should put the MPAAs claim of damage from in proper perspective it would cost billions to develop a testing infrastructure to replace them. (q.v. NSA's budget.) At 11:38 PM -0700 8/22/2000, David A. Wagner wrote: >That shoddiness was one of the most surprising revelations associated >with DeCSS, IMHO. Of course, it is hardly unprecedented to find bad >crypto in proprietary products, but crypto _this_ bad is not so common. >In any case, I still believe that there is a strong public interest in >this type of information: to quote Brandeis (was it?), "Sunlight is the >best disinfectant". Exactly. Far from causing damage to copyright owners, defendants did them a great service by demonstrating just how bad CSS is. Experience shows that senior managers do not change their behavior with regard to weak security based on learned papers; they only do so after demonstrated breaks. Copyright owners who have not yet released on DVD can now make decisions based on reality. Stockholders can now more realistically evaluate the worth of copyright assets. Judge Kaplan would suppress this truth. At 12:06 AM -0700 8/23/2000, David A. Wagner wrote: >By the way, I just remembered an excerpt from Kaplan's decision which >may be of some relevance to your remark: > > "Development and implementation of a new DVD copy protection system, > however, is far more difficult and costly than reprogramming a > combination lock and may carry with it the added problem of rendering > the existing installed base of compliant DVD players obsolete." > >One could argue that the designers had their chance to get it right the >first time and that if they did a truly negligent job the first time, the >cost of building a replacement should not be held against the defendants. > >Probably this is not a very compelling argument, because I didn't get >the impression that Kaplan would have changed his decision even if fixing >CSS were cheap, but I thought I would mention it anyway. I think this may be an important point for the appeal. The Congress has mandated a switch to High Definition Television (HDTV). (This is written into law, so it might be usable even if it is not in the trial record.) Existing DVD players do not support HDTV, so there will be an opportunity to sell a new generation of movie players to the public in the coming decade. There will also be a market for new higher resolution media. The MPAA can learn the lessons DeCSS taught them and incorporate better security in the next generation. Arnold Reinhold From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 23 12:27:22 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA20254 for dvd-discuss-outgoing; Wed, 23 Aug 2000 12:27:22 -0400 Received: from hotmail.com (f225.law8.hotmail.com [216.33.241.225]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id MAA20250 for ; Wed, 23 Aug 2000 12:27:12 -0400 Received: from mail pickup service by hotmail.com with Microsoft SMTPSVC; Wed, 23 Aug 2000 09:26:52 -0700 Received: from 208.41.124.41 by lw8fd.law8.hotmail.msn.com with HTTP; Wed, 23 Aug 2000 GMT X-Originating-IP: [208.41.124.41] From: "Richard Ramos" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] 2600 web site Date: Wed, 23 Aug 2000 16:26:51 GMT Mime-Version: 1.0 Content-Type: text/plain; format=flowed Message-ID: X-OriginalArrivalTime: 23 Aug 2000 16:26:52.0091 (UTC) FILETIME=[F1A890B0:01C00D1E] Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Maybe someone should remind Disney that they fought, through ABC, to keep the book, "How to be a Hit Man" from being taken off shelves because of the First Amendment. The source code to DeCSS contains step by step instructions just as the book does. Maybe someone should remind them about this. Richard Ramos ps - I may not have the correct title of the book. I got this info from a show that aired on ABC titled, "You Can't Say That? What's Happening to Free Speech in America" >It looks like 2600 added a link to the front page of Disney's go.com >search engine, along with the following text. > > >Looking for a copy of DeCSS? > >The easiest way is to go to Disney's search engine and search for >DeCSS. >They will then LINK you to thousands of sites, something we're no >longer >allowed to do. It's possible we may not even be allowed to tell you >this! >You can still access our old list of mirror sites sans the links. > >--- > >Also, Emmanuel Goldstein wrote an analysis of the decision. > >http://www.2600.com/news/2000/0821.html > >The sega continues... :-) >-- >=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=->=-=-=- >______ _ __ "If you don't have the freedom to use what >you > / ' ) ) own - then you do not own >anything." > / o ______ / / _ . . No apologies to Jack Valenti or the MPAA >/ <_/ / / < / (_http://www.visi.com/~tneu >-- ________________________________________________________________________ Get Your Private, Free E-mail from MSN Hotmail at http://www.hotmail.com From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 23 12:28:31 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA20300 for dvd-discuss-outgoing; Wed, 23 Aug 2000 12:28:31 -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 MAA20297 for ; Wed, 23 Aug 2000 12:28:29 -0400 Received: (from eds@localhost) by thud.reric.net (8.9.3/8.8.7) id LAA01704 for dvd-discuss@eon.law.harvard.edu; Wed, 23 Aug 2000 11:28:38 -0500 Date: Wed, 23 Aug 2000 11:28:38 -0500 From: Eric Seppanen To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] OpenCSS Message-ID: <20000823112838.A1688@thud.reric.net> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1us Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Hate to rain on anybody's parade, but what content provider is ever going to produce DVDs that are encrypted but don't play on consumer DVD players, and are only accessible with obscure software on computers? It seems to me that a court might have a pretty easy time believing you're just being clever and trying to repackage "circumvention" devices unless you can show some valuable content released under your scheme. I think the idea of player software that requires user entry of the initial player-key-like-passphrase is interesting, but aren't you dreaming a bit when you talk about actually having folks release DVDs using it? Eric From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 23 12:36:12 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA20723 for dvd-discuss-outgoing; Wed, 23 Aug 2000 12:36:12 -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 MAA20720 for ; Wed, 23 Aug 2000 12:36:11 -0400 Received: by waltz.rahul.net (Postfix, from userid 4001) id 3723199C92; Wed, 23 Aug 2000 09:36:19 -0700 (PDT) Received: from localhost (localhost [127.0.0.1]) by waltz.rahul.net (Postfix) with ESMTP id 17625938C6 for ; Wed, 23 Aug 2000 09:36:19 -0700 (PDT) Date: Wed, 23 Aug 2000 09:36:18 -0700 (PDT) From: Ken Arromdee To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Closing the barn after the barn has been destroyed. In-Reply-To: <39A3FA1C.44BF89C5@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, 23 Aug 2000, John Schulien wrote: > > Because they want to stick with a broken latch > > when all the horses are out of the barn, and > > there's 39K kayaks paddling under the Verrazano bridge.... > It's more like, they insist on "closing the barn door", even > though the barn has been blown into pieces by a tornado > and all that is standing is the twisted door frame, with the > broken door askew ... Not really. Not at all. What they really want is to prevent commercial unlicensed players from being released. They may not be able to stop the spread of DeCSS, but they *will* be able to stop commercial entities from using it or its equivalent. From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 23 12:37:14 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA20771 for dvd-discuss-outgoing; Wed, 23 Aug 2000 12:37:14 -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 MAA20767 for ; Wed, 23 Aug 2000 12:37:13 -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 LAA12019 for ; Wed, 23 Aug 2000 11:37:23 -0500 (CDT) Message-ID: <39A3FE50.EFBB29CB@uic.edu> Date: Wed, 23 Aug 2000 11:39:44 -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] Reason will win out in the end? Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > We can't live in fear of tyrannical judges. > Reason will win out in the end -- if you > cannot rely on this, then all law becomes anarchy. And my general impression of the Supreme Court, having observed its decisions over my lifetime, is that they generally do the right thing with respect to these sorts of issues. I still have hope that the appeals court will simply declare, in the carefully chosen words that appeals courts tend to use, that Kaplan is wrong, and overturn his ruling and findings. OpenCSS is an embodiment of exactly the sort of IP control we are trying to declare illegitimate. I would only advocate the deployment of OpenCSS if Kaplan's decision were upheld by the Supreme Court. It is simply a last-ditch effort to reclaim the right of individual copyright owners to determine the granularity of access control -- to say, "We have the right to play the game too." For the court to declare, in essence, that the only legal alternatives for the distribution of copyrighted DVDs are CSS or nothing is simply wrong, and a dangerous precedent. The MPAA has no right to declare that because they do not wish to market video equipment with unencrypted digital outputs and that allows fair use, that no one else may do so either. If Kaplan's decision is overturned, then the MPAA/DVDCCA/Player manufacturer trust will be effectively broken, and DVD players with unencrypted video outputs and no Macrovision will be perfectly legal. In this case, I'd be delighted to drop OpenCSS into the same toilet as CSS and flush them both away. The software industry went through the copy protection chimera back in the 1980s, with the Apple II. Eventually, the industry came to the realization that all copy protection does is drive people away from store-purchased software, which can't be backed up, and towards "hacked" software, that does what the software is supposed to do in the most efficient and end-user friendly fashion possible. In retrospect, DVD was a scam. Many people fought tooth and nail to destroy DIVX, because DIVX disallowed fair use. No one realized at the time that DVD also disallowed fair use, because DVD had a secret internal encryption system that concealed itself from the end user. If we had had this trial around the time DVD had been introduced, I doubt it would have succeeded. They pulled a fast one on the public. From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 23 12:39:18 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA20868 for dvd-discuss-outgoing; Wed, 23 Aug 2000 12:39:18 -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 MAA20864 for ; Wed, 23 Aug 2000 12:39:16 -0400 Received: (from eds@localhost) by thud.reric.net (8.9.3/8.8.7) id LAA01734 for dvd-discuss@eon.law.harvard.edu; Wed, 23 Aug 2000 11:39:26 -0500 Date: Wed, 23 Aug 2000 11:39:26 -0500 From: Eric Seppanen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] 2600 web site Message-ID: <20000823113926.B1688@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 crazed376@hotmail.com on Wed, Aug 23, 2000 at 04:26:51PM +0000 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Wed, Aug 23, 2000 at 04:26:51PM +0000, Richard Ramos wrote: > Maybe someone should remind Disney that they fought, through ABC, to keep > the book, "How to be a Hit Man" from being taken off shelves because of the > First Amendment. The source code to DeCSS contains step by step > instructions just as the book does. Maybe someone should remind them about > this. > > Richard Ramos > > ps - I may not have the correct title of the book. I got this info from a > show that aired on ABC titled, "You Can't Say That? What's Happening to > Free Speech in America" > The title is "Hit Man : A Technical Manual for Independent Contractors", and the author is "Rex Feral". The case is Rice v. Paladin. Links: http://www.reason.com/sullum/052798.html http://caselaw.findlaw.com/data2/circs/4th/962412p.html http://www.lawnewsnetwork.com/stories/A15150-2000Feb3.html Eric From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 23 12:48:17 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA20938 for dvd-discuss-outgoing; Wed, 23 Aug 2000 12:48:17 -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 MAA20935 for ; Wed, 23 Aug 2000 12:48:16 -0400 Received: from mit.edu (h0050da62b39d.ne.mediaone.net [24.147.217.121]) by chmls05.mediaone.net (8.8.7/8.8.7) with ESMTP id MAA14394; Wed, 23 Aug 2000 12:48:21 -0400 (EDT) Message-ID: <39A400CB.BCE1A518@mit.edu> Date: Wed, 23 Aug 2000 12:50:19 -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] OpenCSS References: <20000823112838.A1688@thud.reric.net> Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Eric Seppanen wrote: > > Hate to rain on anybody's parade, but what content provider is ever going > to produce DVDs that are encrypted but don't play on consumer DVD players, > and are only accessible with obscure software on computers? > > It seems to me that a court might have a pretty easy time believing you're > just being clever and trying to repackage "circumvention" devices unless > you can show some valuable content released under your scheme. > > I think the idea of player software that requires user entry of the > initial player-key-like-passphrase is interesting, but aren't you dreaming > a bit when you talk about actually having folks release DVDs using it? > > Eric That is _exactly_ the point of OpenCSS. Content owners don't want to retool their entire process for creating access controlled disks: and we're not asking them to! By simply including an OpenCSS authorization key with the other DVD player keys content providers can take advantage of a new market while still having access to the old one. Low cost: add one more key to 400 others. (Relatively) large benefit: consumers who like OpenCSS players (like Linux users) will buy your DVD. Now if the DVD CCA contracts forbid content providers from using CSS-compatible access control system then we have grounds for an antitrust suit for attempting to monopolize the "effective access control" market. - Ravi Nanavati From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 23 13:00:27 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA21073 for dvd-discuss-outgoing; Wed, 23 Aug 2000 13:00:27 -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 NAA21070 for ; Wed, 23 Aug 2000 13:00:26 -0400 Received: (from eds@localhost) by thud.reric.net (8.9.3/8.8.7) id MAA01784 for dvd-discuss@eon.law.harvard.edu; Wed, 23 Aug 2000 12:00:35 -0500 Date: Wed, 23 Aug 2000 12:00:35 -0500 From: Eric Seppanen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] OpenCSS Message-ID: <20000823120035.A1772@thud.reric.net> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <20000823112838.A1688@thud.reric.net> <39A400CB.BCE1A518@mit.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1us In-Reply-To: <39A400CB.BCE1A518@mit.edu>; from ravi_n@mit.edu on Wed, Aug 23, 2000 at 12:50:19PM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Wed, Aug 23, 2000 at 12:50:19PM -0400, Ravi Nanavati wrote: > Eric Seppanen wrote: > > > > Hate to rain on anybody's parade, but what content provider is ever going > > to produce DVDs that are encrypted but don't play on consumer DVD players, > > and are only accessible with obscure software on computers? > > > > That is _exactly_ the point of OpenCSS. Content owners don't > want to retool their entire process for creating access > controlled disks: and we're not asking them to! By simply > including an OpenCSS authorization key with the other DVD > player keys content providers can take advantage of a new market > while still having access to the old one. Low cost: add one > more key to 400 others. (Relatively) large benefit: consumers > who like OpenCSS players (like Linux users) will buy your > DVD. Now if the DVD CCA contracts forbid content providers > from using CSS-compatible access control system then we have > grounds for an antitrust suit for attempting to monopolize > the "effective access control" market. But content providers don't get to make that decision, because they never have access to the master list of player keys-- only the manufacturer does. The DVDCCA won't let them have the list of keys because they're afraid they'll leak. Now in theory you could convince the disc manufacturer to do it, but those guys are much smaller in number than the set of possible content providers, and are much more dependent on a DVDCCA license for their very livelihood. Eric From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 23 13:37:15 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA21301 for dvd-discuss-outgoing; Wed, 23 Aug 2000 13:37:15 -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 NAA21298 for ; Wed, 23 Aug 2000 13:37:14 -0400 Received: from ip178.bedford3.ma.pub-ip.psi.net ([38.32.11.178]) by relay21.smtp.psi.net with smtp (Exim 3.13 #3) id 13ReSp-0003KJ-00 for dvd-discuss@eon.law.harvard.edu; Wed, 23 Aug 2000 13:37:24 -0400 From: Ron Gustavson To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] /. comment on copy-protection developments Date: Wed, 23 Aug 2000 13:30:54 -0400 Message-ID: <1d28qsc3nc54m108spusbq8cdj8vqbk5bm@4ax.com> References: <200008231259.IAA20421@soggy-fibers.ai.mit.edu> In-Reply-To: <200008231259.IAA20421@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 NAA21299 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Wed, 23 Aug 2000 08:59:07 -0400 (EDT), "Robert S. Thau" wrote: >It describes, among other things, interesting plans for >copy-protecting signals right out to monitors (via a digital interface >scheme for communications between computers and monitors called DVI, >now under development). Of course this eventually gets down to the xerox machine, which will read a watermark and bill you accordingly for any given page. And have you wondered why Outlook Express treats normal ASCII email as an attachment? __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 23 13:57:06 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA21431 for dvd-discuss-outgoing; Wed, 23 Aug 2000 13:57:06 -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 NAA21428 for ; Wed, 23 Aug 2000 13:56:59 -0400 Message-ID: <20000823175638.6363.qmail@web511.mail.yahoo.com> Received: from [131.44.121.4] by web511.mail.yahoo.com; Wed, 23 Aug 2000 10:56:38 PDT Date: Wed, 23 Aug 2000 10:56:38 -0700 (PDT) From: Bryan Taylor Subject: [dvd-discuss] Content Neutral: Bery v. New York City (!!) To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-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 a GREAT precedent from the 2nd Circuit rejecting New York City's "General Vendors Law" as applied to artists. The law required permits to vend non-food items on public property. The district court had cited O'Brien and found the provision furthered a public interest unrelated to the suppression of free speech that would be achieved less effectively absent the regulation. The prohibition on the sale of art on the streets without a general vendors license, the court found, was appropriately designed to deal with the problem of street congestion. The 2nd Circuit rejected this on the grounds that the District Court didn't properly apply O'Brien's "narrow tailoring" and "alternative channels" standards. I think this helps us, since tossing aside "fair use" can hardly be deemed "narrow tailoring", and well, Kaplan didn't really leave any alternative channels, did he. I LOVE the part below about "street marketing is in fact a part of the message of appellants' art". Implications to open source are obvious. This case is a really nice read, and short too. District Judge Carter wrote the opinion. Also, that Kaplan is no Carter. ______________________ Bery v. City of New York 95-9089 (2nd Cir. 1996) http://caselaw.findlaw.com/scripts/getcase.pl?court=2nd&navby=case&no=959089&exact=1 A content-neutral regulation may restrict the time, place, and manner of protected speech, provided it is "narrowly tailored to serve a significant governmental interest" and "leave[s] open ample alternative channels for communication." Ward , 491 U.S. at 791 , quoting Clark v. Community for Creative Non-Violence , 468 U.S. 288, 293 (1984). The City certainly has a significant interest in keeping its public spaces safe and free of congestion. The license requirement as it relates to appellants, however, which effectively bars them from displaying or selling their art on the streets, is too sweeping to pass constitutional muster. See, e.g. , Cincinnati v. Discovery Network, Inc. , 507 U.S. 410, 429-30 (1993). The district court's failure to properly analyze the questions of narrow tailoring and alternative channels was an abuse of discretion that led to an incorrect result. [...] The City argues that appellants' "expression" allegedly impinged by the Regulation is not in fact their art, but their peddling of the art. It argues that the sale of art is conduct, and in order to be constitutionally protected, the sale of protected material must be "inseparably intertwined with a 'particularized message.'" Young v. New York City Transit Authority , 903 F.2d 146, 153 (2d Cir.), quoting Spence , 418 U.S. at 410 -11, cert. denied , 498 U.S. 984 (1990). The City further argues that appellants are free to display their artwork publicly without a license, they simply cannot sell it. These arguments must fail. The sale of protected materials is also protected. See Lakewood v. Plain Dealer Pub. Co. , 486 U.S. 750, 756 n.5 & 768 (1988). "It is well settled that a speaker's rights are not lost merely because compensation is received; a speaker is no less a speaker because he or she is paid to speak." Riley v. Nat'l Fed'n of Blind of North Carolina , 487 U.S. 781, 801 (1988). [...] Furthermore, the street marketing is in fact a part of the message of appellants' art. As they note in their submissions to the court, they believe that art should be available to the public. Anyone, not just the wealthy, should be able to view it and to buy it. Artists are part of the "real" world; they struggle to make a living and interact with their environments. The sale of art in public places conveys these messages. __________________________________________________ Do You Yahoo!? Yahoo! Mail - Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 23 13:59:49 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA21543 for dvd-discuss-outgoing; Wed, 23 Aug 2000 13:59:49 -0400 Received: from dial173.roadrunner.com (sf-du173.cybermesa.com [209.12.75.173]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id NAA21534 for ; Wed, 23 Aug 2000 13:59:35 -0400 Received: (from paul@localhost) by dial173.roadrunner.com (8.8.7/8.8.7) id MAA00805 for dvd-discuss@eon.law.harvard.edu; Wed, 23 Aug 2000 12:01:08 -0600 Date: Wed, 23 Aug 2000 12:01:08 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] OpenCSS - A new open standard for content protection Message-ID: <20000823120107.A558@localhost> References: <39A30B91.1211DA6E@uic.edu> <8nv8ho$nlk$1@blowfish.isaac.cs.berkeley.edu> <39A34B41.6936596A@mit.edu> <8nvsaa$o8g$1@blowfish.isaac.cs.berkeley.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <8nvsaa$o8g$1@blowfish.isaac.cs.berkeley.edu>; from daw@cs.berkeley.edu on Tue, Aug 22, 2000 at 11:51:54PM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, Aug 22, 2000 at 11:51:54PM -0700, David A. Wagner wrote: > Ravi Nanavati wrote: > > "David A. Wagner" wrote: > > > And yet, if you obtained the appropriate CSS keys through some nefarious > > > means, couldn't you use your hypothetical OpenCSS program to obtain access > > > to watch Time Warner's movies and have a firewire digital output of them? > > > Aren't you running the risk that this alone will be enough to convince the > > > Kaplans of the world that OpenCSS can be used to circumvent? > > > > If people access Time Warner's movies with OpenCSS, they may individually > > be guilty of circumvention but OpenCSS is not a circumvention device. > > What makes you think the DMCA supports such a distinction? > > 1201(b)(1)(B) seems to say that, if a device can be used for circumvention, > and if it has no commercially significant use (e.g., if it is free software!), > you may be prohibited from trafficking in that device. I claim that all readings of 1201(b) are equally bad. Any reading which gives 1201(b) teeth will contradict 1201(c) and lead to patent-like control. A reading that doesn't contradcit 1201(c) and avoid patent-like control will be toothless. First 1201(a) circumvention (Briefly, because I think it is a part of the law that almost makes sense, and it clarifies for me some aspects of circumvention). If the act of descrambling was unauthorized, then: 1. The data-scrambling is the technological measure that controls access. 2. The act, the descrambling, applies to the measure in "1" above. 3. If I further postulate that the measure is "effective", we may conclude "circumvention". 4. The conclusion of circumvention per 1201(a)(1) makes no reference to any copy that might be made. Bringing the issue of copying into an (a) analysis should be a flag that something is amiss; copying is an irrelevancy to the 1201(a) part of the circumvention analysis. So the thing I wanted to clarify is that an act of circumvention defined in 1201(a) and (b) must directly involve a particular technological measure. There is of course a difference between (a) and (b) in that (b) doesn't require authority. There is the further point that 1201(a) at least appears to operate with an authority that is different from authority under 106. In the case of 1201(b), macrovision (or something equivalent) is the technological measure that limits the exercise of an exclusive right. A device that circumvents in this sense would have to permit acts that apply directly to the technological measure in question (macrovision). A. If one held that the "macrovision on" flag is distinct from the macrovision-gacking circuitry, and consequently is not part of a technological measure, then OpenCSS doesn't circumvent because OpenCSS would be the absence of a macrovision implementation. Circumvention would be the de-gacking of the output signal. OpenCSS doesn't de-gack, so there is no circumvention. B. If the "macrovision on" flag is part and parcel of the macrovision technological measure, then the existence of the flag allows copyright holders to dictate player design. Any design that did not honor the the macrovision flag would be "circumvention" of a "technological" measure. Don't ask me how a flag gets elevated to the status of "technology", I'm sure I don't know. The flag looks for all the world to be 106 authority, and not a technological measure. i. The point I'm trying to make with that comment is that 1201(b) _purports_ to regulate the undoing of particular _technological_ measures. However, unless one uses 1201(b) to cover things which are clearly not in themselves a technological-measure-that- limits-the-exercise-of-an-exclusive-right (i.e. a flag) 1201(b) becomes pointless. ii. I don't think this is a defect in the reading of 1201(b), it is a defect in the aims of the law, as enacted. iii. Macrovision limits or impairs the exercise of an exclusive right, but only so long as both the design of player and recorder/display devices is dictated by copyright owners. We're back to patent-like control by authors, controls which lack time limits. iv. These technological measures radically change fair use. This is something which not just any old part of the the statute, but the very act of Congress in question, purports not to do. Unlike 1201(a) where I can arrive at a reading that give that section a charitable and possibly constitutionally valid purpose, I see no way to salvage 1201(b). > Perhaps I am misreading the law, but my interpretation does not seem at all > implausible. I wouldn't call it misreading. I don't think any reading of 1201(b) that leads to a statute with teeth can avoid contradicting 1201(c) or the other problems above. > `(b) ADDITIONAL VIOLATIONS- (1) No 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 protection afforded by a technological measure > that effectively protects a right of a copyright owner under > this title in a work or a portion thereof; > > `(B) has only limited commercially significant purpose or use > other than to circumvent protection afforded by a technological > measure that effectively protects a right of a copyright owner > under this title in a work or a portion thereof; or > > `(C) is marketed by that person or another acting in concert with > that person with that person's knowledge for use in circumventing > protection afforded by a technological measure that effectively > protects a right of a copyright owner under this title in a work > or a portion thereof. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 23 14:35:17 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA21870 for dvd-discuss-outgoing; Wed, 23 Aug 2000 14:35:17 -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 OAA21867 for ; Wed, 23 Aug 2000 14:35:14 -0400 Message-ID: <20000823183454.15205.qmail@web511.mail.yahoo.com> Received: from [131.44.121.4] by web511.mail.yahoo.com; Wed, 23 Aug 2000 11:34:54 PDT Date: Wed, 23 Aug 2000 11:34:54 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] 2600 web site To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --- Eric Seppanen wrote: > On Wed, Aug 23, 2000 at 04:26:51PM +0000, Richard Ramos wrote: > > Maybe someone should remind Disney that they fought, through ABC, > > to keep the book, "How to be a Hit Man" from being taken off shelves > > because of the First Amendment. The source code to DeCSS > > contains step by step instructions just as the book does. Maybe > > someone should remind them about this. Actually, I'm surprised they didn't use the precedent, since they in the Circuit Court, after winning summary judgement below. The Supreme Court passed on the appeal, and the defendents settled and paid, rather than go to trial. > The title is "Hit Man : A Technical Manual for Independent > Contractors", and the author is "Rex Feral". The case is Rice v. > Paladin. > > Links: > http://www.reason.com/sullum/052798.html > http://caselaw.findlaw.com/data2/circs/4th/962412p.html > http://www.lawnewsnetwork.com/stories/A15150-2000Feb3.html You left one out: http://www.overthrow.com/hitmanonline.html __________________________________________________ Do You Yahoo!? Yahoo! Mail - Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 23 15:06:53 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA22861 for dvd-discuss-outgoing; Wed, 23 Aug 2000 15:06:53 -0400 Received: from mail.lemuria.org (lemuria.borgfelde.ricardo.de [195.244.103.65]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id PAA22857 for ; Wed, 23 Aug 2000 15:06:48 -0400 Received: from lemuria.org by mail.lemuria.org via rsmtp with bsmtp id for ; Wed, 23 Aug 2000 21:01:03 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Received: by lemuria.org via sendmail with stdio id for dvd-discuss@eon.law.harvard.edu; Wed, 23 Aug 2000 20:18:02 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Date: Wed, 23 Aug 2000 20:18:02 +0200 From: Tom Vogt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] OpenCSS - A new open standard for content protection Message-ID: <20000823201802.A29058@lemuria.org> References: <39A30B91.1211DA6E@uic.edu> <8nvq4n$o46$1@blowfish.isaac.cs.berkeley.edu> <39A3739B.FF46ACD6@mit.edu> <8nvsm9$oa4$1@blowfish.isaac.cs.berkeley.edu> <20000823110239.A27854@lemuria.org> <200008231521.LAA21026@soggy-fibers.ai.mit.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0pre3i In-Reply-To: <200008231521.LAA21026@soggy-fibers.ai.mit.edu> X-Privacy: If you can, please encrypt your mails - finger for key Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu "Robert S. Thau" wrote: > > since CSS is not patented, this is irrelevant because hollywood does NOT > > have exclusive control over the use of CSS *technology*. > > Well, it looks an awful lot to some of us as if the MPAA is claiming > that the DMCA gave them control over the CSS technology --- basing > their claim on the definition of circumvention in the law, which reads > in part "decryption ... without authority of the copyright owner". where's the problem? the COPYRIGHT OWNER is giving authority. that's the whole point of it. the MPAA obviously thinks they're the only copyright holders (that count) out there. -- "The net treats censorship as a malfunction and re-routes around it." (John Gilmore) From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 23 15:57:45 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA23286 for dvd-discuss-outgoing; Wed, 23 Aug 2000 15:57:45 -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 PAA23283 for ; Wed, 23 Aug 2000 15:57:44 -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 PAA01184 for ; Wed, 23 Aug 2000 15:57:55 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id PAA23313; Wed, 23 Aug 2000 15:57:54 -0400 (EDT) Date: Wed, 23 Aug 2000 15:57:54 -0400 (EDT) Message-Id: <200008231957.PAA23313@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] OpenCSS - A new open standard for content protection In-Reply-To: <20000823201802.A29058@lemuria.org> References: <39A30B91.1211DA6E@uic.edu> <8nvq4n$o46$1@blowfish.isaac.cs.berkeley.edu> <39A3739B.FF46ACD6@mit.edu> <8nvsm9$oa4$1@blowfish.isaac.cs.berkeley.edu> <20000823110239.A27854@lemuria.org> <200008231521.LAA21026@soggy-fibers.ai.mit.edu> <20000823201802.A29058@lemuria.org> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Tom Vogt writes: > "Robert S. Thau" wrote: > > > since CSS is not patented, this is irrelevant because hollywood does NOT > > > have exclusive control over the use of CSS *technology*. > > > > Well, it looks an awful lot to some of us as if the MPAA is claiming > > that the DMCA gave them control over the CSS technology --- basing > > their claim on the definition of circumvention in the law, which reads > > in part "decryption ... without authority of the copyright owner". > > where's the problem? the COPYRIGHT OWNER is giving authority. that's the > whole point of it. the MPAA obviously thinks they're the only copyright > holders (that count) out there. Huh? The notion that copyright owners have that sort of authority is exactly what I thought we were arguing against. We want to build players for the *studios'* DVDs, not somebody else's. (You're aware, I presume, that CSS and "openCSS" are *not* supposed to interoperate, yes? I hope we aren't back to thinking that it might somehow prove something to mint our own, commercially insignificant, CSS-format DVDs[1]). And the problem I see with openCSS is that it, in effect, concedes that argument, by letting the MPAA say something like this: We, as copyright holders grant authority to play our works on CSS players. Some other copyright owners grant authority to play their works, on "openCSS" players. OpenCSS players won't play our works, so we have no quarrel with openCSS. (We certainly would, if openCSS players played our works --- that would be circumvention of *our* access control scheme. But they won't). Likewise, CSS players won't play openCSS works. But that is in accord with the wishes of the owners of the openCSS works --- if they wanted their works to play in CSS players, they'd get a license, for a nominal fee. In short, openCSS licensors are using the DMCA to control the machinery on which their works can be played, exactly as we are. So anyone who supports "openCSS" certainly has no right to object when we do the same thing. In short, I don't see how development of an "openCSS" helps secure the right for people to build their own players for CSS --- in fact, it seems to work against that right. I don't see how the exercise of setting up a licensing structure exactly parallel to the DVDCCA, for a different piece of technology, helps make the point that the DVDCCA's licensing structure is illegitimate --- which is, IIRC, what we're trying to prove. rst [1] If so, please reread D.C. Sessions' argumentation over the past few days, which does a pretty good job of explaining why that would prove nothing. From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 23 16:24:25 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA23765 for dvd-discuss-outgoing; Wed, 23 Aug 2000 16:24:25 -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 QAA23762 for ; Wed, 23 Aug 2000 16:24:21 -0400 Received: (from uucp@localhost) by natsemi-bh.nsc.com (8.8.8/8.6.11) id NAA25108 for ; Wed, 23 Aug 2000 13:24:25 -0700 (PDT) Received: from mailhost1.ia.nsc.com(147.5.200.40) by natsemi-bh.nsc.com via smap (4.1) id xma024807; Wed, 23 Aug 00 13:23:45 -0700 Received: from ball by ia.nsc.com (SMI-8.6/SMI-SVR4) id OAA29470; Wed, 23 Aug 2000 14:23:44 -0600 From: "John Zulauf" To: Subject: [dvd-discuss] Explicit prior restraint w.r.t. RE Date: Wed, 23 Aug 2000 14:28:09 -0600 Message-ID: <000e01c00d40$a6962660$87ce0593@ia.nsc.com> MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: 8bit X-Priority: 3 (Normal) X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook 8.5, Build 4.71.2377.0 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 Here is an example of explicit prior restraint based on content that seems in direct opposition to the First Amendment. I haven't seen this covered yet, but it seems a most egregious attack on the "freedom of the press." Page 37 paragraph 2 of Judge Kaplan's opinion: > First, Section 1201(f)(3) permits information acquired > through reverse engineering to be made available to > others only by the person who acquired the information. > But these defendants did not do any reverse engineering. > They simply took DeCSS off someone else’s web site and > posted it on their own. The opinion creates a class of information which is legal only for some subset of the population to express. Only an engineer engaged in reverse engineering can express the results of his or her work -- and can only do so directly. All hearers are prohibited from expressing this information. Let's say that (as an extreme example), it was discovered by reverse engineering that a TPM caused cancer (for example it silently performed an X-ray of the user's hand to verify identity). Only the engineer -- in Kaplan's opinion -- would be able to provide that information. The press would be silenced as they did not perform the reverse engineering themselves. In this case we have the engineer providing information that a TPM is badly flawed (as dangerous as cancer to the copyright holder rights from rantings of the MPAA). Again only the engineer him/her self can disclose this information. This is explictly prior restraint on non-engineers, based on the content (reverse engineering of a TPM information) of the speak. Wait it gets worse: > Defendants would be in no stronger position even if they > had authored DeCSS. The right to make the information > available extends only to dissemination “solely for the > purpose” of achieving interoperability as defined in the > statute. Not even the engineer has the right to disseminate this information in all cases. Also, not only the content of the expression is evaluated but the purpose as well. How the court (aside from reading the engineer's mind) can know this purpose without reference to direct testimony is unknown. But in any case both the actual content (the reverse engineered information), and the political content (the purpose of the expression) are explictly used as a test to restrain the speak. > It does not apply to public dissemination of means > of circumvention, as the legislative history confirms.151 This ignores facts-in-evidence regarding the nature of Open Source development. It is performed explictly in a public forum (and the GPL requires this) with subsequent engineering and refinement done by other engineers unknown and unexpected by the original author. The ONLY means for an open source engineer to collaborate is by definition public dissemination. This restraint is specific to open source developers -- imposing an impossible burden on the process of reverse engineering for one of the most productive areas of "progress in the useful ... sciences" over the last half decade. > These defendants, however, did not post DeCSS “solely” to > achieve interoperability with Linux or anything else. This brings us full circle. The press is prohibited (prior restraint) from publishing the results of TPM reverse engineering simply because the content is the results of reverse engineering a TPM. I wish a major paper in the US would take up the challenge and post the DeCSS source just to oppose this explicit infringment of the freedom of the press. Comments, critiques, limericks? There onces was a hack called DeCSS Which made MPAA underwear go all a-mess They sued 'em in court The judge was all for it The First Amendment will this unjust farce redress John Zulauf private netizen From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 23 16:34:05 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA23880 for dvd-discuss-outgoing; Wed, 23 Aug 2000 16:34:05 -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 QAA23877 for ; Wed, 23 Aug 2000 16:34:04 -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 NAA28875 for ; Wed, 23 Aug 2000 13:33:57 -0700 Received: (from daw@localhost) by blowfish.isaac.cs.berkeley.edu (8.8.7/8.8.7) id NAA26313; Wed, 23 Aug 2000 13:34:00 -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] OpenCSS - A new open standard for content protection Date: 23 Aug 2000 13:33:41 -0700 Organization: A poorly-installed InterNetNews site Lines: 32 Distribution: isaac Message-ID: <8o1cf5$pm8$1@blowfish.isaac.cs.berkeley.edu> References: <20000823154637.2610.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 wrote: > We can't live in fear of tyrannical judges. Reason will win out in the > end -- if you cannot rely on this, then all law becomes anarchy. That's all well and good, but I thought OpenCSS was being presented as a bullet-proof demonstration -- "The courts won't dare ban this!", the OpenCSS proponents seem to be implying. I don't think it is unreasonable to express skepticism about those hopes. Testing exactly the limits of the law may indeed be a positive endeavour; but that doesn't mean you'll get the results you want in court! I'm not saying this makes the experiment worthless -- indeed, in some circumstances, maybe an experiment designed to fail might be the greatest possible success -- but it is still a good idea to be realistic about one's prospects. Viewing OpenCSS as a iron-clad, unassailably-protected tool seems pretty optimistic to me. Maybe I'm just more pessimistic than you. > By the reasoning you give above, PGP should be banned, since, no doubt, > someone has encrypted their copyrighted work with their own key. Indeed. Maybe. If PGP has no other commercial significant use, and if PGP can be regarded as 1201-protected TPM, perhaps the DMCA could be read to ban of it. Of course, this is iffier than DeCSS or OpenCSS; we already have a court who has declared CSS a TPM, but no court has declared PGP a 1201-protected TPM. Also, it is easier to argue that PGP has a commercially significant use; just present PGP, Inc.'s business plan. Anyway, maybe the law is absurd, crazy, bad social policy. But I hope you realize that arguments along the line of "the law is bad policy, hence the courts will surely overturn it" aren't always 100% reliable. :-) From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 23 16:41:31 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA23989 for dvd-discuss-outgoing; Wed, 23 Aug 2000 16:41:31 -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 QAA23986 for ; Wed, 23 Aug 2000 16:41:29 -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 NAA28951 for ; Wed, 23 Aug 2000 13:41:22 -0700 Received: (from daw@localhost) by blowfish.isaac.cs.berkeley.edu (8.8.7/8.8.7) id NAA26374; Wed, 23 Aug 2000 13:41:26 -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] OpenCSS - A new open standard for content protection Date: 23 Aug 2000 13:41:16 -0700 Organization: A poorly-installed InterNetNews site Lines: 15 Distribution: isaac Message-ID: <8o1ctc$po5$1@blowfish.isaac.cs.berkeley.edu> References: <39A3F951.914A72EF@uic.edu> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I guess I'm not getting my point across very well. I'm certainly not saying ``don't bother trying OpenCSS.'' Instead, I'm saying ``maybe you should consider the possibility that the courts might ban OpenCSS.'' Of course, OpenCSS might still be useful even -- or especially -- if it is banned, but that's not my point. Maybe I'm misunderstanding the intended role of OpenCSS, but I thought the idea was to make it so obviously above-board that any reasonable judge would have to be persuaded that it does not violate the DMCA. If that is an accurate characterization, I would like to express some doubt about whether OpenCSS would achieve those goals. Even *I* have some doubts about whether OpenCSS might violate the letter of the law, and I'm hardly the MPAA's strongest supporter. If I misunderstood the goals of OpenCSS, I apologize. From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 23 16:45:08 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA24105 for dvd-discuss-outgoing; Wed, 23 Aug 2000 16:45:08 -0400 Received: from mail.glenatl.glenayre.com (mail.glenatl.glenayre.com [157.230.160.51]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id QAA24102 for ; Wed, 23 Aug 2000 16:45:06 -0400 Received: from mindspring.com (mmcgown.glenatl.glenayre.com [157.230.162.136]) by mail.glenatl.glenayre.com (8.10.1/8.10.1) with ESMTP id e7NKikX11385 for ; Wed, 23 Aug 2000 16:44:46 -0400 (EDT) Message-ID: <39A437BD.DC6044A5@mindspring.com> Date: Wed, 23 Aug 2000 16:44:45 -0400 From: mickeym X-Mailer: Mozilla 4.61 [en] (WinNT; I) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Explicit prior restraint w.r.t. RE Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > Comments, critiques, limericks? > > > There onces was a hack called DeCSS > Which made MPAA underwear go all a-mess > They sued 'em in court > The judge was all for it > The First Amendment will this unjust farce redress > > > John Zulauf > private netizen > "Send Your Reply Comments Now Before The September Five Deadline" by mickeym Be sure and copyright your comments and obfuscate them in some way, so you can use their law against them if they complain of what you say. From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 23 16:49:11 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA24234 for dvd-discuss-outgoing; Wed, 23 Aug 2000 16:49:11 -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 QAA24231 for ; Wed, 23 Aug 2000 16:49:10 -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 NAA29023 for ; Wed, 23 Aug 2000 13:49:03 -0700 Received: (from daw@localhost) by blowfish.isaac.cs.berkeley.edu (8.8.7/8.8.7) id NAA26401; Wed, 23 Aug 2000 13:49:06 -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] more errors in Kaplan's Date: 23 Aug 2000 13:48:57 -0700 Organization: A poorly-installed InterNetNews site Lines: 21 Distribution: isaac Message-ID: <8o1dbp$pp0$1@blowfish.isaac.cs.berkeley.edu> References: <20000823153844.22952.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: > --- "David A. Wagner" wrote: > > Take your favorite technique for access > > control; there are many which don't use cryptography. > > Maybe I'm being a bonehead, but I can't think of any. Access control lists? Capabilities? Use `chmod o+r' to make your files world-readable; use `chmod o-r' to remove world read permission. That's an access control mechanism. Now add a copyrighted work, stir in a dose of authority, imagine a tool (`read-secrets') that somehow bypasses the world-read permissions and was built for the sole purpose of circumventing, and post it on your web page, marketing it as a way to circumvent world-read protection on copyrighted works without the authority of the copyright holder. Would such a example 1201(a)-prohibited circumvention? I don't know. Is there a strong argument that we would come to any different conclusion with such a tool than with DeCSS? From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 23 16:50:36 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA24385 for dvd-discuss-outgoing; Wed, 23 Aug 2000 16:50:36 -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 QAA24381 for ; Wed, 23 Aug 2000 16:50:35 -0400 Received: from mit.edu (h0050da62b39d.ne.mediaone.net [24.147.217.121]) by chmls06.mediaone.net (8.8.7/8.8.7) with ESMTP id QAA06899; Wed, 23 Aug 2000 16:50:44 -0400 (EDT) Message-ID: <39A43999.1D620FE9@mit.edu> Date: Wed, 23 Aug 2000 16:52:41 -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] OpenCSS - A new open standard for content protection References: <39A30B91.1211DA6E@uic.edu> <8nvq4n$o46$1@blowfish.isaac.cs.berkeley.edu> <39A3739B.FF46ACD6@mit.edu> <8nvsm9$oa4$1@blowfish.isaac.cs.berkeley.edu> <20000823110239.A27854@lemuria.org> <200008231521.LAA21026@soggy-fibers.ai.mit.edu> <20000823201802.A29058@lemuria.org> <200008231957.PAA23313@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: > And the problem I see with openCSS is that it, in effect, concedes > that argument, by letting the MPAA say something like this: > > We, as copyright holders grant authority to play our works on > CSS players. > > Some other copyright owners grant authority to play their works, > on "openCSS" players. > > OpenCSS players won't play our works, so we have no quarrel with > openCSS. (We certainly would, if openCSS players played our works > --- that would be circumvention of *our* access control scheme. > But they won't). > > Likewise, CSS players won't play openCSS works. But that is in > accord with the wishes of the owners of the openCSS works --- if > they wanted their works to play in CSS players, they'd get a > license, for a nominal fee. > > In short, openCSS licensors are using the DMCA to control the > machinery on which their works can be played, exactly as we are. So > anyone who supports "openCSS" certainly has no right to object when > we do the same thing. > > In short, I don't see how development of an "openCSS" helps secure the > right for people to build their own players for CSS --- in fact, it > seems to work against that right. > > I don't see how the exercise of setting up a licensing structure > exactly parallel to the DVDCCA, for a different piece of technology, > helps make the point that the DVDCCA's licensing structure is > illegitimate --- which is, IIRC, what we're trying to prove. > > rst > > [1] If so, please reread D.C. Sessions' argumentation over the past > few days, which does a pretty good job of explaining why that > would prove nothing. Remember what the MPAA's goal is. Their goal is to eliminate fair use by getting all of the tools that enable fair use (particularly unsanctioned players) to be classified as "circumvention devices". OpenCSS calls the MPAA's bluff by creating an unsanctioned player that is not a circumvention device. 1) It is not a 1201 circumvention device, nor was it designed or marketed to be a circumvention device. If they attempt to ban OpenCSS as a 1201 circumvention device they have announced in big, flaming letters that they are claiming that 1201 grants them (copyright owners) a monopoly on a process, even against other copyright owners. If that isn't found unconsitutional and/or contradictory then they've bought the entire system and the game is over in any case. 2) The DVD CCA trade-secret player keys are not, by any strech of the imagination, circumvention devices, and assuming we win the California trade-secret case, or otherwise legitimately reverse-engineer the keys they can be distributed legally under trade-secret law. 3) Combining an OpenCSS player with DVD CCA trade-secret keys may result in _acts_ of circumvention. But now the MPAA/DVD CCA is going to have to attack a particular act, not a particular device. If the act is playing a DVD, or making use of the digital video for research purposes, or backing up a DVD for personal use, we are now on fair use territory. Without an all-powerful reality-distortion field they cannot simultaneously attack fair use acts and claim that 1201 does not ban fair use of copyrighted works. If their attack succeeds, we are again on constitutional ground that we either win or we lose and learn the entire system is corrupt. Now, if we win all of these points while sidestepping the constitutional questions, we have established that it is legal to distribute something which can be easily turned into a circumvention device by a person as long as we don't distribute a complete device. The next angle to take is how far does this go: Does this apply to DeCSS source code. If not, why not? Someone needs to compile DeCSS source code to turn it into a circumvention device the same way someone needs to obtain the DVD CCA trade secret keys to circumvent with an OpenCSS player. The point of all of this is that the MPAA and Kaplan are trying to make distinctions without differences to sidestep constitutional issues. OpenCSS either (a) exposes the constitutional issues, or (b) shows why the distinctions made are untenable. This is the same way we want to attack Kaplan's order on linking. Keep pushing the definition of a link until either it is obvious that the logical conclusion of the order is to prevent Corely from discussing DeCSS in any way or trivial aspects of the discussion are banned ( tags, for instance), but not others leading to incomprehensible distinctions that Corely cannot be reasonably expected to comply with. - Ravi Nanavati From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 23 16:54:22 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA24553 for dvd-discuss-outgoing; Wed, 23 Aug 2000 16:54:22 -0400 Received: from web513.mail.yahoo.com (web513.mail.yahoo.com [216.115.104.228]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id QAA24550 for ; Wed, 23 Aug 2000 16:54:21 -0400 Message-ID: <20000823205401.8416.qmail@web513.mail.yahoo.com> Received: from [131.44.121.4] by web513.mail.yahoo.com; Wed, 23 Aug 2000 13:54:01 PDT Date: Wed, 23 Aug 2000 13:54:01 -0700 (PDT) From: Bryan Taylor Subject: [dvd-discuss] 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/politics/0,1283,38360,00.html Choice quote, albeit a bit blunt: "I think that Judge Kaplan does not know his head from his ass," says Adrian Bacon, owner of Linux News Online. "Outlawing a site from linking to another site that has DeCSS is just plain wrong." __________________________________________________ Do You Yahoo!? Yahoo! Mail - Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 23 16:57:41 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA24956 for dvd-discuss-outgoing; Wed, 23 Aug 2000 16:57:41 -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 QAA24953 for ; Wed, 23 Aug 2000 16:57:41 -0400 Received: from mit.edu (h0050da62b39d.ne.mediaone.net [24.147.217.121]) by chmls06.mediaone.net (8.8.7/8.8.7) with ESMTP id QAA10179; Wed, 23 Aug 2000 16:57:50 -0400 (EDT) Message-ID: <39A43B44.EA27E563@mit.edu> Date: Wed, 23 Aug 2000 16:59:48 -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] OpenCSS - A new open standard for content protection References: <39A3F951.914A72EF@uic.edu> <8o1ctc$po5$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 guess I'm not getting my point across very well. I'm certainly not > saying ``don't bother trying OpenCSS.'' Instead, I'm saying ``maybe > you should consider the possibility that the courts might ban OpenCSS.'' > Of course, OpenCSS might still be useful even -- or especially -- if it > is banned, but that's not my point. > > Maybe I'm misunderstanding the intended role of OpenCSS, but I thought > the idea was to make it so obviously above-board that any reasonable > judge would have to be persuaded that it does not violate the DMCA. > If that is an accurate characterization, I would like to express some > doubt about whether OpenCSS would achieve those goals. Even *I* have > some doubts about whether OpenCSS might violate the letter of the law, > and I'm hardly the MPAA's strongest supporter. > > If I misunderstood the goals of OpenCSS, I apologize. In fact, you've gotten it exactly backwards. We want the MPAA to challenge and get OpenCSS banned under 1201 because that will blow away all of the smoke and mirrors they are using to hide from the constitutional issues. If they don't we'll have to dig in for an encryption-style holding action that will make non-MPAA-sanctioned players possible but harder to use, which will force them to face a tougher (but, hopefully, not insurmountable) road to market acceptance. - Ravi Nanavati From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 23 16:58:16 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA24966 for dvd-discuss-outgoing; Wed, 23 Aug 2000 16:58:16 -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 QAA24962 for ; Wed, 23 Aug 2000 16:58:14 -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 NAA29093 for ; Wed, 23 Aug 2000 13:58:07 -0700 Received: (from daw@localhost) by blowfish.isaac.cs.berkeley.edu (8.8.7/8.8.7) id NAA26435; Wed, 23 Aug 2000 13:58:10 -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] 40-bit encryption (Was Re: code as speech) Date: 23 Aug 2000 13:57:02 -0700 Organization: A poorly-installed InterNetNews site Lines: 11 Distribution: isaac Message-ID: <8o1dqu$ppm$1@blowfish.isaac.cs.berkeley.edu> References: <8nvr2p$o5p$1@blowfish.isaac.cs.berkeley.edu> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Arnold G. Reinhold wrote: > I think it is reasonable for MPAA to have different responses to each > threat. For example, mass copying requires fairly expensive and > specialized equipment. They can track those operations down. Yes, you are quite right, as usual. Nonetheless, that's not what the plaintiffs said in court. They complained that DeCSS created an imminent threat of mass piracy, of irreparable harm to their revenue stream, that was not present before DeCSS was published on the 2600 and other web sites. Personally, I feel your presentation is a more accurate characterization of the threat model and appropriate defenses. From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 23 17:08:44 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA25106 for dvd-discuss-outgoing; Wed, 23 Aug 2000 17:08:44 -0400 Received: from diplo.antw.online.be (diplo.antw.online.be [62.112.0.10]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA25102 for ; Wed, 23 Aug 2000 17:08:41 -0400 Received: from 62.112.10.74 (dialpool1-74.dial.tijd.com [62.112.10.74]) by diplo.antw.online.be (8.9.3/8.9.0) with SMTP id XAA09465 for ; Wed, 23 Aug 2000 23:08:46 +0200 (MET DST) Message-ID: <39A43D27.7521@tijd.com> Date: Wed, 23 Aug 2000 23:07:52 +0200 From: jpa X-Mailer: Mozilla 3.01-C-MACOS8 (Macintosh; I; PPC) MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] consumer fraud Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu If I understand Kaplan correctly, he appears to say that if I buy a DVD, the goods and rights I receive for my money depend on whether the DVD is CSS encrypted or not. If this is correct, then the absence of notification of CSS encryption on a DVD can be construed as consumer fraud: the buyer receives a lot less than he thinks he is receiving. From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 23 17:48:23 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA26269 for dvd-discuss-outgoing; Wed, 23 Aug 2000 17:48:23 -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 RAA26266 for ; Wed, 23 Aug 2000 17:48:22 -0400 Message-ID: <20000823214803.2173.qmail@web510.mail.yahoo.com> Received: from [131.44.121.4] by web510.mail.yahoo.com; Wed, 23 Aug 2000 14:48:03 PDT Date: Wed, 23 Aug 2000 14:48:03 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] more errors in Kaplan's To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-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: > Bryan Taylor wrote: > > --- "David A. Wagner" wrote: > > > Take your favorite technique for access > > > control; there are many which don't use cryptography. > > > > Maybe I'm being a bonehead, but I can't think of any. > > Access control lists? Capabilities? > > Use `chmod o+r' to make your files world-readable; use `chmod o-r' to > remove world read permission. That's an access control mechanism. But it is really just an extention of the user authentication, which falls into the classes I've mentioned that use cryptography. The password authentication is what determines authority. I suppose that biometric type authentications would be an example that might not use encryption, although there, the storage of your "fingerprint" would be a one-time application of information. > Now add a copyrighted work, stir in a dose of authority, imagine a > tool (`read-secrets') that somehow bypasses the world-read > permissions and was built for the sole purpose of circumventing, > and post it on your web page, marketing it as a way to circumvent > world-read protection on copyrighted works without the authority > of the copyright holder. You just ruled that "full-disclosure" ala bug-traq is illegal since it violates the DMCA. Security by protecting insecurity is an oxymoron that shouldn't even meet a rational basis test. > Would such a example 1201(a)-prohibited circumvention? I don't know. > Is there a strong argument that we would come to any different > conclusion with such a tool than with DeCSS? Exploits are critical to the elimination of security defects, since they (1) tangibly prove the existence of the problem, (2) provide an objective, vendor independent test for repair, (3) foster learning from others mistakes. Does this save full disclosure from 1201? I guess it depends on who gets to be the judge, doesn't it. __________________________________________________ Do You Yahoo!? Yahoo! Mail - Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 23 17:51:00 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA26388 for dvd-discuss-outgoing; Wed, 23 Aug 2000 17:51:00 -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 RAA26385 for ; Wed, 23 Aug 2000 17:50:59 -0400 Message-ID: <20000823215039.23414.qmail@web512.mail.yahoo.com> Received: from [131.44.121.4] by web512.mail.yahoo.com; Wed, 23 Aug 2000 14:50:39 PDT Date: Wed, 23 Aug 2000 14:50:39 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] consumer fraud To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --- jpa wrote: > If I understand Kaplan correctly, he appears to say that if I buy a > DVD, the goods and rights I receive for my money depend on whether > the DVD is CSS encrypted or not. If this is correct, then the absence > of notification of CSS encryption on a DVD can be construed as > consumer fraud: the buyer receives a lot less than he thinks he > is receiving. I was somewhat surprised that the defence never made this argument, although Kaplan would have found some sophistry to shoot it down. __________________________________________________ Do You Yahoo!? Yahoo! Mail - Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 23 17:55:32 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA26437 for dvd-discuss-outgoing; Wed, 23 Aug 2000 17:55:32 -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 RAA26434 for ; Wed, 23 Aug 2000 17:55:31 -0400 Received: from mediaone.net (h0060b03c5b8b.ne.mediaone.net [24.128.18.77]) by chmls05.mediaone.net (8.8.7/8.8.7) with ESMTP id RAA03691 for ; Wed, 23 Aug 2000 17:55:41 -0400 (EDT) Message-ID: <39A4485E.98E5A8DB@mediaone.net> Date: Wed, 23 Aug 2000 17:55:42 -0400 From: Sphere X-Mailer: Mozilla 4.73 [en] (WinNT; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] OpenCSS - A new open standard for content protection References: <39A30B91.1211DA6E@uic.edu> <8nvq4n$o46$1@blowfish.isaac.cs.berkeley.edu> <39A3739B.FF46ACD6@mit.edu> <8nvsm9$oa4$1@blowfish.isaac.cs.berkeley.edu> <20000823110239.A27854@lemuria.org> <200008231521.LAA21026@soggy-fibers.ai.mit.edu> <20000823201802.A29058@lemuria.org> <200008231957.PAA23313@soggy-fibers.ai.mit.edu> <39A43999.1D620FE9@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: > ... > > Now, if we win all of these points while sidestepping > the constitutional questions, we have established that > it is legal to distribute something which can be easily > turned into a circumvention device by a person as long > as we don't distribute a complete device. The next angle > to take is how far does this go: Does this apply to DeCSS > source code. If not, why not? Someone needs to compile > DeCSS source code to turn it into a circumvention device > the same way someone needs to obtain the DVD CCA > trade secret keys to circumvent with an OpenCSS player. > The point of all of this is that the MPAA and Kaplan are > trying to make distinctions without differences to sidestep > constitutional issues. OpenCSS either > (a) exposes the constitutional issues, or > (b) shows why the distinctions made are untenable. > ... > - Ravi Nanavati You think 2066 would be willing to post a "DefangDeCSS"; which doesn't contain the keys, but instead asks for a filename and reads whatever is in the file into its' key arrays? I think the ruling/law says something about parts...... How about if 2600 posts BrokenDeCSS, with the wrong keys? This is, effectively, OpenCSS... -- Sphere. Is DeCSS.c obscene? Why can't I read it? Can knowledge be forbidden? From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 23 18:04:10 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA27340 for dvd-discuss-outgoing; Wed, 23 Aug 2000 18:04:10 -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 SAA27336 for ; Wed, 23 Aug 2000 18:04:09 -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 SAA14600 for ; Wed, 23 Aug 2000 18:04:20 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id SAA24620; Wed, 23 Aug 2000 18:04:20 -0400 (EDT) Date: Wed, 23 Aug 2000 18:04:20 -0400 (EDT) Message-Id: <200008232204.SAA24620@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] OpenCSS - A new open standard for content protection In-Reply-To: <39A43999.1D620FE9@mit.edu> References: <39A30B91.1211DA6E@uic.edu> <8nvq4n$o46$1@blowfish.isaac.cs.berkeley.edu> <39A3739B.FF46ACD6@mit.edu> <8nvsm9$oa4$1@blowfish.isaac.cs.berkeley.edu> <20000823110239.A27854@lemuria.org> <200008231521.LAA21026@soggy-fibers.ai.mit.edu> <20000823201802.A29058@lemuria.org> <200008231957.PAA23313@soggy-fibers.ai.mit.edu> <39A43999.1D620FE9@mit.edu> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Ravi Nanavati writes: > Remember what the MPAA's goal is. Their goal is to eliminate > fair use by getting all of the tools that enable fair use > (particularly unsanctioned players) to be classified as > "circumvention devices". OpenCSS calls the MPAA's bluff by > creating an unsanctioned player that is not a circumvention > device. To be precise, they want to be able to impose use controls on use of *their own works*, not to eliminate all fair use. WRT commercial movies, it amounts to the same thing, but saying "eliminate [all] fair use" lets their partisans score cheap debating points by pointing out the distinction-without-a-difference. > 1) It is not a 1201 circumvention device, nor was it designed > or marketed to be a circumvention device. If they attempt > to ban OpenCSS as a 1201 circumvention device they have > announced in big, flaming letters that they are claiming > that 1201 grants them (copyright owners) a monopoly on a > process, even against other copyright owners. If that isn't > found unconsitutional and/or contradictory then they've > bought the entire system and the game is over in any case. That is, as others have pointed out, debatable. The defendants claim their "OpenCSS" is intended solely as a player for their "OpenCSS"-licensed content, and that their use of the CSS cipher is intended solely to enable viewing of those works, and not to enable anyone to view ours. However, the law bans distribution of devices which "have only a limited commercially significant purpose other to circumvent", and viewing their paltry selection of amateur videos is hardly a commercially significant purpose. So, by the letter of the law, if "OpenCSS" can be used to circumvent our access control, its trafficking and use must be banned. And that is obviously their true purpose. They have lambasted us for choosing such a cryptographically weak cipher ourselves, pointing out repeatedly that cryptographically stronger options are freely available. Why would they choose such a weak cipher to protect their own work, unless their true purpose is in fact to exploit ours? > 2) The DVD CCA trade-secret player keys are not, by any > strech of the imagination, circumvention devices, and > assuming we win the California trade-secret case, or > otherwise legitimately reverse-engineer the keys they can > be distributed legally under trade-secret law. Also debatable. As several people have pointed out, Kaplan's opinion certainly seems to imply that the DMCA created a kind of sui generis intellectual property protection for cryptographic keys, however distributed or applied. If another court buys that, then it certainly could hold that trafficking in stolen keys is a DMCA violation. rst From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 23 18:16:49 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA27481 for dvd-discuss-outgoing; Wed, 23 Aug 2000 18:16:49 -0400 Received: from mail.lemuria.org (lemuria.borgfelde.ricardo.de [195.244.103.65]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id SAA27478 for ; Wed, 23 Aug 2000 18:16:48 -0400 Received: from lemuria.org by mail.lemuria.org via rsmtp with bsmtp id for ; Thu, 24 Aug 2000 00:09:05 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Received: by lemuria.org via sendmail with stdio id for dvd-discuss@eon.law.harvard.edu; Thu, 24 Aug 2000 00:05:57 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Date: Thu, 24 Aug 2000 00:05:57 +0200 From: Tom Vogt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] consumer fraud Message-ID: <20000824000557.A29829@lemuria.org> References: <39A43D27.7521@tijd.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0pre3i In-Reply-To: <39A43D27.7521@tijd.com> X-Privacy: If you can, please encrypt your mails - finger for key Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu jpa wrote: > If I understand Kaplan correctly, he appears to say that if I buy a DVD, > the goods and rights I receive for my money depend on whether the DVD > is CSS encrypted or not. > If this is correct, then the absence of notification of CSS encryption > on a DVD can be construed as consumer fraud: the buyer receives a lot > less than he thinks he is receiving. actually, the whole DVD scheme is fraudulent, but that's just my personal opinion. there are lots of issues with the artificial restrictions but on DVDs, from fair use to price fixing and market division. lots of the stuff is illegal, but the DVD system in engineered in such a way as to leave just enough loopholes. -- "The net treats censorship as a malfunction and re-routes around it." (John Gilmore) From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 23 18:25:44 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA27651 for dvd-discuss-outgoing; Wed, 23 Aug 2000 18:25:44 -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 SAA27648 for ; Wed, 23 Aug 2000 18:25:43 -0400 Received: from ip250.bedford3.ma.pub-ip.psi.net ([38.32.11.250]) by relay21.smtp.psi.net with smtp (Exim 3.13 #3) id 13Riy1-0001mL-00 for dvd-discuss@eon.law.harvard.edu; Wed, 23 Aug 2000 18:25:53 -0400 From: Ron Gustavson To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] OpenCSS - A new open standard for content protection Date: Wed, 23 Aug 2000 18:19:27 -0400 Message-ID: <6di8qs0qmh365858o3vjmt5d4i8n7miee5@4ax.com> References: <39A30B91.1211DA6E@uic.edu> <8nvq4n$o46$1@blowfish.isaac.cs.berkeley.edu> <39A3739B.FF46ACD6@mit.edu> <8nvsm9$oa4$1@blowfish.isaac.cs.berkeley.edu> <20000823110239.A27854@lemuria.org> <200008231521.LAA21026@soggy-fibers.ai.mit.edu> <20000823201802.A29058@lemuria.org> <200008231957.PAA23313@soggy-fibers.ai.mit.edu> <39A43999.1D620FE9@mit.edu> <200008232204.SAA24620@soggy-fibers.ai.mit.edu> In-Reply-To: <200008232204.SAA24620@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 SAA27649 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu rst wrote: > > And that is obviously their true purpose. They have lambasted us > for choosing such a cryptographically weak cipher ourselves, > pointing out repeatedly that cryptographically stronger options are > freely available. Why would they choose such a weak cipher to > protect their own work, unless their true purpose is in fact to > exploit ours? > Actually in light of s/DVI, we may need an independent, open source access control more than ever. I propose scrapping CSS and any attempt to interoperate with it in favor of a more robust encryption that may be applied by the authors themselves, before going to disc replicators. While this won't make LiViD legal--a prospect that grows darker with each dawn--it will provide competition to the CSS gang. An independent effort would likely be compatible with any storage medium: DVD, DVD-RAM/RW/+RW etc., as well as CD; not to mention downloads. They need to be beat in the marketplace. And what better way to do this than through an open source effort? Look, Ovitz and other content pros aren't going anywhere. They might adopt a user-driven TPM, turning the industry on its head. Look at the Stephen King experiment. Not that a TPM is actually needed, but putting one in the hands of the director or author would at least give them a real choice--not an offer they can't refuse. While we are more comfortable with open access to information, providing an author-applied key may free us from being locked into Hollywood's central clearing house by an unholy alliance of hardware/software manufacturers. I'd also make a distinction between information--which wants [us] to be free-- and entertainment products--which are never free. I'd forget about CSS. The legal distraction alone is enough to dissuade. (Who wants to spend years fighting for a soon-to-be obsolete player?) If we concentrate on PCs, we are free to use any algorithim and scheme. The good news is that Intel will support us as well. Remember their interest is in anything that burns clock cycles--the more the better. When Valenti says 56 bits, they smile; when Joe Hacker says 1024 bits they grin from ear to ear. The Replay/TiVo folks and hard drive vendors will also support us. Their interest is in selling more and more digital capacity--in amounts that are bound to threaten Hollywood's lackeys. __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 23 18:28:51 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA27694 for dvd-discuss-outgoing; Wed, 23 Aug 2000 18:28:51 -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 SAA27691 for ; Wed, 23 Aug 2000 18:28:50 -0400 Message-ID: <20000823222831.16668.qmail@web511.mail.yahoo.com> Received: from [131.44.121.4] by web511.mail.yahoo.com; Wed, 23 Aug 2000 15:28:31 PDT Date: Wed, 23 Aug 2000 15:28:31 -0700 (PDT) From: Bryan Taylor Subject: [dvd-discuss] Erie v. Pap's To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-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 read the very recent case that deals with content-neutral laws. I'm not happy about the result. ERIE v. PAP'S A. M. U.S. 98-1161 (2000) http://caselaw.findlaw.com/scripts/getcase.pl?court=us&vol=000&invol=98-1161 Here the court in a fractured plurality opinion, over strident dissent from Stevens & Ginsberg, held that a city's ban on public nudity was a content-neutral standard as applied to Kandyland, an all nude dance club. In doing so, the reversed the Pennsylvania Supreme Court. I actually found Steven's dissent pretty persuasive. Anyway, the opinion of the court by O'Connor shows how the Court tries to apply analysis under the O'Brien test. __________________________________________________ Do You Yahoo!? Yahoo! Mail - Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 23 19:46:59 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA27979 for dvd-discuss-outgoing; Wed, 23 Aug 2000 19:46:59 -0400 Received: from gandalf.start-up.com.ar (ip-startup.ipsa.com.ar [200.47.1.26]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id TAA27976 for ; Wed, 23 Aug 2000 19:46:54 -0400 From: andres@start-up.com.ar Received: from start-up.com.ar (aragorn [192.168.0.6]) by gandalf.start-up.com.ar (8.9.3/8.9.3) with ESMTP id UAA17305 for ; Wed, 23 Aug 2000 20:49:36 -0300 Message-ID: <39A47275.E1776069@start-up.com.ar> Date: Wed, 23 Aug 2000 20:55:17 -0400 Organization: StartUp S.R.L. X-Mailer: Mozilla 4.73 [en] (X11; I; Linux 2.2.14 i586) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] OpenCSS References: <20000823112838.A1688@thud.reric.net> <39A400CB.BCE1A518@mit.edu> Content-Type: text/plain; charset=iso-8859-1 Content-Transfer-Encoding: 8bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Ravi Nanavati wrote: > > Eric Seppanen wrote: > > > > Hate to rain on anybody's parade, but what content provider is ever going > > to produce DVDs that are encrypted but don't play on consumer DVD players, > > and are only accessible with obscure software on computers? > > > > It seems to me that a court might have a pretty easy time believing you're > > just being clever and trying to repackage "circumvention" devices unless > > you can show some valuable content released under your scheme. > > > > I think the idea of player software that requires user entry of the > > initial player-key-like-passphrase is interesting, but aren't you dreaming > > a bit when you talk about actually having folks release DVDs using it? > > > > Eric > > That is _exactly_ the point of OpenCSS. Content owners don't > want to retool their entire process for creating access > controlled disks: and we're not asking them to! By simply > including an OpenCSS authorization key with the other DVD > player keys content providers can take advantage of a new market > while still having access to the old one. Low cost: add one > more key to 400 others. (Relatively) large benefit: consumers > who like OpenCSS players (like Linux users) will buy your > DVD. Now if the DVD CCA contracts forbid content providers > from using CSS-compatible access control system then we have > grounds for an antitrust suit for attempting to monopolize > the "effective access control" market. > > - Ravi Nanavati How curious, I was just registering a domain name to write a simple webpage to put decss on it, and I found that decss.com.ar (I live in Argentina) was already registered, so I thought of OpenCSS.com.ar. Then I continued reading on the list and I found this thread... no more than 2 minutes after registering the domain :) well, anyway, I have already set up my dns's to point it to my webserver.. so if you want to use this domain, or there's any other way I can help you guys, just let me know. -- Andrés Tarrío From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 23 22:06:49 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA28793 for dvd-discuss-outgoing; Wed, 23 Aug 2000 22:06:49 -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 WAA28790 for ; Wed, 23 Aug 2000 22:06:47 -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 TAA30302 for ; Wed, 23 Aug 2000 19:06:40 -0700 Received: (from daw@localhost) by blowfish.isaac.cs.berkeley.edu (8.8.7/8.8.7) id TAA26764; Wed, 23 Aug 2000 19:06:43 -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] more errors in Kaplan's Date: 23 Aug 2000 19:06:33 -0700 Organization: A poorly-installed InterNetNews site Lines: 36 Distribution: isaac Message-ID: <8o1vv9$q4b$1@blowfish.isaac.cs.berkeley.edu> References: <20000823214803.2173.qmail@web510.mail.yahoo.com> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Bryan Taylor wrote: > --- "David A. Wagner" wrote: > > Use `chmod o+r' to make your files world-readable; use `chmod o-r' to > > remove world read permission. That's an access control mechanism. > > But it is really just an extention of the user authentication, which > falls into the classes I've mentioned that use cryptography. The > password authentication is what determines authority. Naah. The password hashing is not fundamental, and just clouds the issue. It's incidental, an optimization, irrelevant. Since we're engaging in a gedankenexperiment anyway, we can just as easily imagine a system where the OS stores passwords (yes, in cleartext) in a protected file, and authenticates you by comparing the password you type against the what's in the file. Look ma, no crypto! But circumvention is still prohibited...maybe. (And no, this isn't just academic sophistry; plenty of real systems out there operate something like this. By the way, the cryptographic hash, in Unix, is just there as an optimization so that the hashed passwords can be stored in a world-readable file, instead of in a system-access-only file. I think the consensus of most security researchers is that this strategy is now pretty much obsolete, and remains primarily because of inertia.) And, sure, yeah, you can replace passwords with biometrics, if you prefer. Or smartcards. Or a physical key (you know, the metal kind, that sits on your key-ring), along with a lock wired up to the computer (hopefully in some vaguely tamper-resistant way). And so on. The standard one-liner is that you are typically authenticated by ``something you have, something you know, or something you are''. A key or smartcard is something you have; a password is something you know; a fingerprint or voiceprint or iris scan is something you are. Crypto is hardly the only form of authentication. From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 23 22:14:42 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA28909 for dvd-discuss-outgoing; Wed, 23 Aug 2000 22:14:42 -0400 Received: from PROXY ([202.139.53.82]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id WAA28906 for ; Wed, 23 Aug 2000 22:14:39 -0400 Received: from 192.168.200.12 by PROXY (InterScan E-Mail VirusWall NT); Thu, 24 Aug 2000 10:14:46 +0800 Received: by mits_perth_com1.mitswa.com.au with Internet Mail Service (5.5.2650.21) id ; Thu, 24 Aug 2000 10:08:20 +0800 Message-ID: <54A50136B6CAD3118FBD00C00D00DDEF037272@mits_perth_com1.mitswa.com.au> From: "McMeikan, Andrew" To: "'dvd-discuss@eon.law.harvard.edu'" Subject: [dvd-discuss] key security Date: Thu, 24 Aug 2000 10:08:19 +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 just for info http://www.cl.cam.ac.uk/users/rja14/tamper.html on keeping cryptographic secrets here is an excerpt ---- concrete. The whole assembly is so solid that the seismometers themselves can be relied upon to detect tampering events with a fairly high probability. This physical protection is reinforced by random challenge inspections. So if systems have to be protected against class III opponents, we might hazard the following summary: * if our goal is to merely detect tampering with a positive probability (as with treaty verification), then we can allow unsupervised access provided we are allowed to use a massive construction and to perform challenge inspections; * if we wish to prevent the loss of a cryptographic key with near certainty (as with firing codes), then we had better use explosives and we had better also guard the device. The above analysis convinced us that military agencies have limited confidence in the ability of tamper-resistant devices (and especially portable ones) to withstand a class III opponent with unsupervised access. Having read an early draft of this paper, a senior agency official confirmed that chip contents cannot be kept from a capable motivated opponent; at most one can impose cost and delay. A similar opinion was ventured by a senior scientist at a leading chip maker. ---- From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 23 22:26:08 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA28984 for dvd-discuss-outgoing; Wed, 23 Aug 2000 22:26:08 -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 WAA28981 for ; Wed, 23 Aug 2000 22:26:07 -0400 Received: from mit.edu (h0050da62b39d.ne.mediaone.net [24.147.217.121]) by chmls05.mediaone.net (8.8.7/8.8.7) with ESMTP id WAA23531; Wed, 23 Aug 2000 22:26:17 -0400 (EDT) Message-ID: <39A48845.1A28D6F6@mit.edu> Date: Wed, 23 Aug 2000 22:28:21 -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] OpenCSS - A new open standard for content protection References: <39A30B91.1211DA6E@uic.edu> <8nvq4n$o46$1@blowfish.isaac.cs.berkeley.edu> <39A3739B.FF46ACD6@mit.edu> <8nvsm9$oa4$1@blowfish.isaac.cs.berkeley.edu> <20000823110239.A27854@lemuria.org> <200008231521.LAA21026@soggy-fibers.ai.mit.edu> <20000823201802.A29058@lemuria.org> <200008231957.PAA23313@soggy-fibers.ai.mit.edu> <39A43999.1D620FE9@mit.edu> <200008232204.SAA24620@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: > To be precise, they want to be able to impose use controls on use of > *their own works*, not to eliminate all fair use. WRT commercial > movies, it amounts to the same thing, but saying "eliminate [all] fair > use" lets their partisans score cheap debating points by pointing out > the distinction-without-a-difference. Thanks for the correction. Plaintiffs want to impose use controls that substantially burden or eliminate fair use of certain versions of their copyrighted works. Since fair use has constitutional dimensions, I'd like plaintiffs to point to the constitutional amendment that allows them to do this. [About OpenCSS not being a circumvention device or a component of one] > That is, as others have pointed out, debatable. > > > The defendants claim their "OpenCSS" is intended solely as a player > for their "OpenCSS"-licensed content, and that their use of the CSS > cipher is intended solely to enable viewing of those works, and not > to enable anyone to view ours. > > However, the law bans distribution of devices which "have only a > limited commercially significant purpose other to circumvent", and > viewing their paltry selection of amateur videos is hardly a > commercially significant purpose. So, by the letter of the law, if > "OpenCSS" can be used to circumvent our access control, its > trafficking and use must be banned. > > And that is obviously their true purpose. They have lambasted us > for choosing such a cryptographically weak cipher ourselves, > pointing out repeatedly that cryptographically stronger options are > freely available. Why would they choose such a weak cipher to > protect their own work, unless their true purpose is in fact to > exploit ours? > But this is the debate we want to have. The MPAA is now claiming that since they used CSS to encrypt their copyrighted works we can't use the CSS cipher for anything else, granting an unconstitutional process monopoly. Can I use CSS to encrypt movies (even if I have the authority of the copyright holder)? No, says the MPAA. How about email? How about my SSH session? Under this argument they'd say no to that as well. They're trying to hide this grant by focusing on the ban of devices and their components, not on unlicensed performers of a process, and we need to expose it. If compatibility with an existing standard (in terms of cheap dual support) is not a legitimate commercial purpose then Word 2001 will include default "access controls" that make StarOffice/AbiWord/WordPerfect import filters illegal circumvention devices. Some days I don't even care about DVDs, what gets me angry is that the MPAA wants to establish a legal framework for turning today's temporary monopolies that can be regulated by antitrust law into tomorrow's permanent monopolies that are beyond the reach of antitrust. Where in the DMCA or the Congressional record does it say that Congress wanted to do that? And, given the history of IP misuse cases could that reading of the DMCA be constitutional? > > 2) The DVD CCA trade-secret player keys are not, by any > > strech of the imagination, circumvention devices, and > > assuming we win the California trade-secret case, or > > otherwise legitimately reverse-engineer the keys they can > > be distributed legally under trade-secret law. > > Also debatable. As several people have pointed out, Kaplan's opinion > certainly seems to imply that the DMCA created a kind of sui generis > intellectual property protection for cryptographic keys, however > distributed or applied. If another court buys that, then it certainly > could hold that trafficking in stolen keys is a DMCA violation. I'm not sure where you get this from Kaplan's opinion. If you're referring to Kaplan's "contagious disease" metaphor then I would have to say that it is horribly broken since the exact same reasoning could be used to regulate material that is "harmful to minors" on the Internet. After all, Congress can regulate such material on broadcast networks and the Internet spreads such material faster and wider than a broadcast network could ever dream of doing. Plaintiffs can choose stronger access controls, plaintiffs can develop field-upgradable access controls, plaintiffs can choose to eschew the network effect benefits of software players, plaintiffs can choose authorization models that do not require the secrecy of the process, plaintiffs have far more ways to protect their copyrighted content then prohibiting the precise discussion of the strengths and particularly the weaknesses of access control measures (as part of their claim of a monopoly on the access control process). - Ravi Nanavati From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 23 22:25:59 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA28976 for dvd-discuss-outgoing; Wed, 23 Aug 2000 22:25:59 -0400 Received: from smtp04.primenet.com (smtp04.primenet.com [206.165.6.134]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id WAA28973 for ; Wed, 23 Aug 2000 22:25:58 -0400 Received: (from daemon@localhost) by smtp04.primenet.com (8.9.3/8.9.3) id TAA25104 for ; Wed, 23 Aug 2000 19:24:15 -0700 (MST) Received: from sessions.phx.primenet.com(206.132.239.114), claiming to be "heorot.lumbercartel.com" via SMTP by smtp04.primenet.com, id smtpdAAAXsai_W; Wed Aug 23 19:24:08 2000 Received: from frankenstein.lumbercartel.com (IDENT:dcs@frankenstein.lumbercartel.com [192.168.6.2]) by heorot.lumbercartel.com (8.9.3/8.8.7) with SMTP id TAA28553 for ; Wed, 23 Aug 2000 19:25:55 -0700 From: "D. C. Sessions" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Errors and flaws in Kaplan's opinion Date: Wed, 23 Aug 2000 06:26:13 -0700 X-Mailer: KMail [version 1.0.29] Content-Type: text/plain References: <39A3062C.CD924B9@swbell.net> <20000823103309.B27711@lemuria.org> In-Reply-To: <20000823103309.B27711@lemuria.org> MIME-Version: 1.0 Message-Id: <00082306281402.17389@frankenstein.lumbercartel.com> Content-Transfer-Encoding: 8bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Wed, 23 Aug 2000, Tom Vogt wrote: > Jolley wrote: > > This may be a small point, but, I don't think you can say absolutely > > that digital files > > can be copied without degradation from generation to generation. Errors > > can > > and do happen when transferring digital data. > > almost every transfer has error-correction. I think it is correct to say > that digital copies are perfect. while in theory there are errors, it > doesn't really happen in practice. all your programs are digital, too. and > while a single bit error on a picture or .mp3 wouldn't be noticed, a single > bit in an executable would often lead to a crash. Shannon's Law. For any lower bounded signal-to-noise level there is a coding scheme which can transfer data without error. In the case of very low-noise stuff like file copy, it's usually enough to do a checksum-and-retry. -- | Microsoft: "A reputation for releasing inferior software will make | | it more difficult for a software vendor to induce customers to pay | | for new products or new versions of existing products." | +----------- D. C. & M. V. Sessions ----------+ From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 23 23:03:11 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA29214 for dvd-discuss-outgoing; Wed, 23 Aug 2000 23:03:11 -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 XAA29211 for ; Wed, 23 Aug 2000 23:03:10 -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 UAA30608 for ; Wed, 23 Aug 2000 20:03:03 -0700 Received: (from daw@localhost) by blowfish.isaac.cs.berkeley.edu (8.8.7/8.8.7) id UAA26885; Wed, 23 Aug 2000 20:03:06 -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] more errors in Kaplan's Date: 23 Aug 2000 20:02:45 -0700 Organization: A poorly-installed InterNetNews site Lines: 18 Distribution: isaac Message-ID: <8o238l$q84$1@blowfish.isaac.cs.berkeley.edu> References: <20000823214803.2173.qmail@web510.mail.yahoo.com> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Bryan Taylor wrote: > You just ruled that "full-disclosure" ala bug-traq is illegal since it > violates the DMCA. Security by protecting insecurity is an oxymoron > that shouldn't even meet a rational basis test. [...] > Exploits are critical to the elimination of security defects, since > they (1) tangibly prove the existence of the problem, (2) provide an > objective, vendor independent test for repair, (3) foster learning from > others mistakes. Ding-ding-ding. That's a nice explanation of part of the reason why a number of computer scientists are concerned about the potential effects of the DMCA on research in computer security. If you are restricted from publishing the primary sources used in your research, other researchers may not be able to verify your findings. If others can't independently verify your findings, it's not science. That's a real cause for concern. But surely I'm preaching to the choir here. From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 23 23:37:17 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA29739 for dvd-discuss-outgoing; Wed, 23 Aug 2000 23:37:17 -0400 Received: from PROXY ([202.139.53.82]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id XAA29736 for ; Wed, 23 Aug 2000 23:37:12 -0400 Received: from 192.168.200.12 by PROXY (InterScan E-Mail VirusWall NT); Thu, 24 Aug 2000 11:37:20 +0800 Received: by mits_perth_com1.mitswa.com.au with Internet Mail Service (5.5.2650.21) id ; Thu, 24 Aug 2000 11:30:55 +0800 Message-ID: <54A50136B6CAD3118FBD00C00D00DDEF037274@mits_perth_com1.mitswa.com.au> From: "McMeikan, Andrew" To: "'dvd-discuss@eon.law.harvard.edu'" Subject: [dvd-discuss] DMCA comes to Australia as Copyright Amendment (Digital Agenda) B ill 1999 Date: Thu, 24 Aug 2000 11:30:54 +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 am an Australian who fears the DMCA because if it can happen in America with their rights what could happen to me here with much more ambiguous rights. Well my fear seems justified, this has not passed yet but is close to passing and seems to be a more industry version than the DMCA is. IANAL but it seems to forbid linking, promoting (T-shirts), importing circumvention, promotes pay-per view and lets copyright last forever. On the good side it does seem to make allowances for libraries and politicians. If you *really* can justify getting a work transferred from one media to another (i.e. librarian needs DVD excerpt on VHS) then you can go to an authorized person who so long as he's is wearing his government registered photo ID can enter a licensed decrypting area an make the extraction for a suitable fee and royalty to the copyright holder. Could someone who can read lawyer speak have a look and tell me to stop worrying or to start insisting that I get my calls returned. Worried, Andrew... http://search.aph.gov.au/search/ParlInfo.ASP?action=browse&Path=Legislation/ Current+Bills+by+Title/Copyright+Amendment+(Digital+Agenda)+Bill+1999&Start= 4&dB7 From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 23 23:38:05 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA29747 for dvd-discuss-outgoing; Wed, 23 Aug 2000 23:38:05 -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 XAA29744 for ; Wed, 23 Aug 2000 23:38:04 -0400 Received: from Jana-Server (user-38ld4eh.dialup.mindspring.com [209.86.145.209]) by granger.mail.mindspring.net (8.9.3/8.8.5) with SMTP id XAA12187 for ; Wed, 23 Aug 2000 23:38:14 -0400 (EDT) Message-ID: <39A498D5.7ECAB37E@mindspring.com> Date: Wed, 23 Aug 2000 23:39:02 -0400 From: mickeym X-Mailer: Mozilla 4.7 [en] (Win95; I) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] more errors in Kaplan's Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > > > > Take your favorite technique for access > > > > control; there are many which don't use cryptography. > > > > > > Maybe I'm being a bonehead, but I can't think of any. I can think of some hardware approaches that I have seen, such as a one-byte latch at a funny memory address, hole in a floppy disk, or even tamper resistant fasteners count, wouldn't they?. mickeym From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 23 23:55:41 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA29928 for dvd-discuss-outgoing; Wed, 23 Aug 2000 23:55:41 -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 XAA29925 for ; Wed, 23 Aug 2000 23:55:40 -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 UAA30872 for ; Wed, 23 Aug 2000 20:55:34 -0700 Received: (from daw@localhost) by blowfish.isaac.cs.berkeley.edu (8.8.7/8.8.7) id UAA27005; Wed, 23 Aug 2000 20:55:36 -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: [dvd-discuss] NYTimes article on DeCSS Date: 23 Aug 2000 20:54:28 -0700 Organization: A poorly-installed InterNetNews site Lines: 32 Message-ID: <8o269k$qbq$1@blowfish.isaac.cs.berkeley.edu> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu The following opinion article may be of interest to this mailing list. http://www.nytimes.com/library/tech/00/08/circuits/articles/24pete.html [...] Flashback: In junior high school, the lockers all had combination locks, but before long we figured out that by lifting the locker door handle and applying just the right amount of pressure to a specific point on the door -- BAM! -- the locker popped open. We also discovered, much to our delight, that the technique worked on any locker. The vice principal was not pleased that we had found a way to circumvent the locker security system, and he forbid us to use it. Thus were sown the seeds of anarchy. It was the school's fault, we reasoned, for having chosen cheap locks in the first place. And instead of trying to suppress what was already by then a widely known technique for hacking the lockers, the school simply needed to install better locks. Fast forward to 1999. [...] Instead of putting on their dunce caps and writing "We goofed on the encryption scheme" 100 times on the blackboard, and developing a new business model, the movie studios decided in effect to sue the Internet. [...] From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 24 00:06:34 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA30098 for dvd-discuss-outgoing; Thu, 24 Aug 2000 00:06:34 -0400 Received: from smtp05.primenet.com (smtp05.primenet.com [206.165.6.135]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id AAA30091 for ; Thu, 24 Aug 2000 00:06:33 -0400 Received: (from daemon@localhost) by smtp05.primenet.com (8.9.3/8.9.3) id VAA14163 for ; Wed, 23 Aug 2000 21:06:50 -0700 (MST) Received: from sessions.phx.primenet.com(206.132.239.114), claiming to be "heorot.lumbercartel.com" via SMTP by smtp05.primenet.com, id smtpdAAAZOa4JB; Wed Aug 23 21:06:42 2000 Received: from frankenstein.lumbercartel.com (IDENT:dcs@frankenstein.lumbercartel.com [192.168.6.2]) by heorot.lumbercartel.com (8.9.3/8.8.7) with SMTP id VAA28967 for ; Wed, 23 Aug 2000 21:06:29 -0700 From: "D. C. Sessions" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] key security Date: Wed, 23 Aug 2000 20:51:08 -0700 X-Mailer: KMail [version 1.0.29] Content-Type: text/plain References: <54A50136B6CAD3118FBD00C00D00DDEF037272@mits_perth_com1.mitswa.com.au> In-Reply-To: <54A50136B6CAD3118FBD00C00D00DDEF037272@mits_perth_com1.mitswa.com.au> MIME-Version: 1.0 Message-Id: <00082320542403.18057@frankenstein.lumbercartel.com> Content-Transfer-Encoding: 8bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Wed, 23 Aug 2000, McMeikan, Andrew wrote: > just for info http://www.cl.cam.ac.uk/users/rja14/tamper.html on keeping > cryptographic secrets > here is an excerpt > ---- [...] > The above analysis convinced us that military agencies have limited > confidence in the ability of tamper-resistant devices (and especially > portable ones) to withstand a class III opponent with unsupervised access. > Having read an early draft of this paper, a senior agency official confirmed > that chip contents cannot be kept from a capable motivated opponent; at most > one can impose cost and delay. A similar opinion was ventured by a senior > scientist at a leading chip maker. > ---- That's a fer-sher. I've worked on technologies to hide on-chip keys. There isn't one technique that we couldn't crack with a modest investment in equipment, effort, and time. Our success criterion was always, "have we made this difficult enough that it's cheaper to bribe someone?" -- | Microsoft: "A reputation for releasing inferior software will make | | it more difficult for a software vendor to induce customers to pay | | for new products or new versions of existing products." | +----------- D. C. & M. V. Sessions ----------+ From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 24 00:06:38 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA30106 for dvd-discuss-outgoing; Thu, 24 Aug 2000 00:06:38 -0400 Received: from smtp02.primenet.com (smtp02.primenet.com [206.165.6.132]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id AAA30103 for ; Thu, 24 Aug 2000 00:06:36 -0400 Received: (from daemon@localhost) by smtp02.primenet.com (8.9.3/8.9.3) id VAA09356 for ; Wed, 23 Aug 2000 21:04:37 -0700 (MST) Received: from sessions.phx.primenet.com(206.132.239.114), claiming to be "heorot.lumbercartel.com" via SMTP by smtp02.primenet.com, id smtpdAAAk0aajs; Wed Aug 23 21:04:23 2000 Received: from frankenstein.lumbercartel.com (IDENT:dcs@frankenstein.lumbercartel.com [192.168.6.2]) by heorot.lumbercartel.com (8.9.3/8.8.7) with SMTP id VAA28914 for ; Wed, 23 Aug 2000 21:05:58 -0700 From: "D. C. Sessions" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] consumer fraud Date: Wed, 23 Aug 2000 20:38:47 -0700 X-Mailer: KMail [version 1.0.29] Content-Type: text/plain References: <20000823215039.23414.qmail@web512.mail.yahoo.com> In-Reply-To: <20000823215039.23414.qmail@web512.mail.yahoo.com> MIME-Version: 1.0 Message-Id: <00082320410700.18057@frankenstein.lumbercartel.com> Content-Transfer-Encoding: 8bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Wed, 23 Aug 2000, Bryan Taylor wrote: > --- jpa wrote: > > If I understand Kaplan correctly, he appears to say that if I buy a > > DVD, the goods and rights I receive for my money depend on whether > > the DVD is CSS encrypted or not. If this is correct, then the absence > > > of notification of CSS encryption on a DVD can be construed as > > consumer fraud: the buyer receives a lot less than he thinks he > > is receiving. > > I was somewhat surprised that the defence never made this argument, > although Kaplan would have found some sophistry to shoot it down. That's why it's essential to have only DVDCCA-approved players in circulation. As long as there are no bootleg players, the purchaser of a DVD is assured that his use of it is legal. If bootleg players are allowed, consumers run the risk of becoming unwitting criminals by accessing the purchased DVDs on an unauthorized device. -- | Microsoft: "A reputation for releasing inferior software will make | | it more difficult for a software vendor to induce customers to pay | | for new products or new versions of existing products." | +----------- D. C. & M. V. Sessions ----------+ From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 24 00:06:33 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA30092 for dvd-discuss-outgoing; Thu, 24 Aug 2000 00:06:33 -0400 Received: from smtp03.primenet.com (smtp03.primenet.com [206.165.6.133]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id AAA30087 for ; Thu, 24 Aug 2000 00:06:32 -0400 Received: (from daemon@localhost) by smtp03.primenet.com (8.9.3/8.9.3) id VAA05248 for ; Wed, 23 Aug 2000 21:05:37 -0700 (MST) Received: from sessions.phx.primenet.com(206.132.239.114), claiming to be "heorot.lumbercartel.com" via SMTP by smtp03.primenet.com, id smtpdAAA6jaOkk; Wed Aug 23 21:05:30 2000 Received: from frankenstein.lumbercartel.com (IDENT:dcs@frankenstein.lumbercartel.com [192.168.6.2]) by heorot.lumbercartel.com (8.9.3/8.8.7) with SMTP id VAA28970 for ; Wed, 23 Aug 2000 21:06:30 -0700 From: "D. C. Sessions" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] OpenCSS - A new open standard for content protection Date: Wed, 23 Aug 2000 21:01:25 -0700 X-Mailer: KMail [version 1.0.29] Content-Type: text/plain References: <39A30B91.1211DA6E@uic.edu> <200008232204.SAA24620@soggy-fibers.ai.mit.edu> <39A48845.1A28D6F6@mit.edu> In-Reply-To: <39A48845.1A28D6F6@mit.edu> MIME-Version: 1.0 Message-Id: <00082321054404.18057@frankenstein.lumbercartel.com> Content-Transfer-Encoding: 8bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Wed, 23 Aug 2000, Ravi Nanavati wrote: > "Robert S. Thau" wrote: > [About OpenCSS not being a circumvention device or a component > of one] > > That is, as others have pointed out, debatable. > > > > > > The defendants claim their "OpenCSS" is intended solely as a player > > for their "OpenCSS"-licensed content, and that their use of the CSS > > cipher is intended solely to enable viewing of those works, and not > > to enable anyone to view ours. > > > > However, the law bans distribution of devices which "have only a > > limited commercially significant purpose other to circumvent", and > > viewing their paltry selection of amateur videos is hardly a > > commercially significant purpose. So, by the letter of the law, if > > "OpenCSS" can be used to circumvent our access control, its > > trafficking and use must be banned. > > > > And that is obviously their true purpose. They have lambasted us > > for choosing such a cryptographically weak cipher ourselves, > > pointing out repeatedly that cryptographically stronger options are > > freely available. Why would they choose such a weak cipher to > > protect their own work, unless their true purpose is in fact to > > exploit ours? > > > > But this is the debate we want to have. The MPAA is now claiming that > since they used CSS to encrypt their copyrighted works we can't use > the CSS cipher for anything else, granting an unconstitutional > process monopoly. Can I use CSS to encrypt movies (even if I have the > authority of the copyright holder)? No, says the MPAA. > How about email? How about my SSH session? Under this argument > they'd say no to that as well. They're trying to hide this grant > by focusing on the ban of devices and their components, not on > unlicensed performers of a process, and we need to expose it. Think Microsoft.NET -- MS client software connecting to MS server software with encryption to protect user data. Now let MS own the protocols with legal teeth against any other use, because non-MS protocol software is of limited commercial application compared to its potential as a circumvention device. Remember that part of the traffic in this case is MPAA/RIAA content and they're counting on end-to-end lockdown, which necessitates Windows Media Player out to the codec. -- | Microsoft: "A reputation for releasing inferior software will make | | it more difficult for a software vendor to induce customers to pay | | for new products or new versions of existing products." | +----------- D. C. & M. V. Sessions ----------+ From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 24 00:25:44 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA30300 for dvd-discuss-outgoing; Thu, 24 Aug 2000 00:25:44 -0400 Received: from mail.world-net.co.nz (mail.world-net.co.nz [203.96.119.27]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id AAA30297 for ; Thu, 24 Aug 2000 00:25:41 -0400 Received: from leopard.lan (nw3-84.world-net.co.nz [202.37.68.84]) by mail.world-net.co.nz (8.9.3/8.9.3) with SMTP id QAA12940 for ; Thu, 24 Aug 2000 16:22:23 +1200 From: Daniel Richards To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] NYTimes article on DeCSS Date: Thu, 24 Aug 2000 16:21:50 +1200 X-Mailer: KMail [version 1.0.29.2] Content-Type: text/plain References: <8o269k$qbq$1@blowfish.isaac.cs.berkeley.edu> In-Reply-To: <8o269k$qbq$1@blowfish.isaac.cs.berkeley.edu> MIME-Version: 1.0 Message-Id: <00082416224701.00789@leopard.lan> Content-Transfer-Encoding: 8bit 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, 24 Aug 2000, you wrote: > The following opinion article may be of interest to this mailing list. > > http://www.nytimes.com/library/tech/00/08/circuits/articles/24pete.html [snip] and for those of you who can't be bothered registering, put use www10.nytimesetcetc as the URL.. oopps.. does that count as circumnavigation? Glad I dont live in the US - -- "Your future has arrived, are you ready to go?" -----BEGIN PGP SIGNATURE----- Version: GnuPG v1.0.1 (GNU/Linux) Comment: For info see http://www.gnupg.org iD8DBQE5pKMdHxSqGAiQwxwRAsZOAJ0ael94O74EQUKFYt3a9Gkrm/5rxwCgloRd TAOGLfxl+w4by7zBUoGxV7k= =RNUH -----END PGP SIGNATURE----- From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 24 00:56:36 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA30419 for dvd-discuss-outgoing; Thu, 24 Aug 2000 00:56:36 -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 AAA30416 for ; Thu, 24 Aug 2000 00:56:35 -0400 Message-ID: <20000824045616.2363.qmail@web512.mail.yahoo.com> Received: from [64.81.25.36] by web512.mail.yahoo.com; Wed, 23 Aug 2000 21:56:16 PDT Date: Wed, 23 Aug 2000 21:56:16 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] NYTimes article on 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 --- "David A. Wagner" wrote: > The following opinion article may be of interest to this mailing > list. > > http://www.nytimes.com/library/tech/00/08/circuits/articles/24pete.html > Choice quote from article: "This is the court's decision after trial, and the decision may be summarized in a nutshell," District Judge Lewis A. Kaplan wrote in his decision. With all due respect to Judge Kaplan, he chose a highly appropriate container. This is the New York Times taking a jab, not some crackpot (like me) on slashdot. __________________________________________________ Do You Yahoo!? Yahoo! Mail - Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 24 06:02:23 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id GAA32641 for dvd-discuss-outgoing; Thu, 24 Aug 2000 06:02:23 -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 GAA32638 for ; Thu, 24 Aug 2000 06:02:21 -0400 Received: from localhost (ssyreeni@localhost) by kruuna.Helsinki.FI (8.10.1/8.10.1) with ESMTP id e7OA2VG08284 for ; Thu, 24 Aug 2000 13:02:31 +0300 (EET DST) X-Authentication-Warning: kruuna.Helsinki.FI: ssyreeni owned process doing -bs Date: Thu, 24 Aug 2000 13:02:30 +0300 (EET DST) From: Sampo A Syreeni To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Errors and flaws in Kaplan's opinion In-Reply-To: <00082306281402.17389@frankenstein.lumbercartel.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, 23 Aug 2000, D. C. Sessions wrote: >> almost every transfer has error-correction. I think it is correct to say >> that digital copies are perfect. while in theory there are errors, it >> doesn't really happen in practice. all your programs are digital, too. and >> while a single bit error on a picture or .mp3 wouldn't be noticed, a single >> bit in an executable would often lead to a crash. > >Shannon's Law. For any lower bounded signal-to-noise level there >is a coding scheme which can transfer data without error. Actually that's 'with arbitrarily low average error rate'. >In the case of very low-noise stuff like file copy, it's usually enough to >do a checksum-and-retry. Actually it's quite difficult to show that file copies obey the statistical assumptions behind Shannon's theorem. It might actually be that in some environments you can achieve something stronger than an arbitrarily low error rate. Sampo Syreeni , aka decoy, student/math/Helsinki university From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 24 06:26:54 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id GAA00325 for dvd-discuss-outgoing; Thu, 24 Aug 2000 06:26:54 -0400 Received: from mail.lemuria.org (lemuria.borgfelde.ricardo.de [195.244.103.65]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id GAA00322 for ; Thu, 24 Aug 2000 06:26:53 -0400 Received: from lemuria.org by mail.lemuria.org via rsmtp with bsmtp id for ; Thu, 24 Aug 2000 12:24:03 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Received: by lemuria.org via sendmail with stdio id for dvd-discuss@eon.law.harvard.edu; Thu, 24 Aug 2000 11:53:03 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Date: Thu, 24 Aug 2000 11:53:03 +0200 From: Tom Vogt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] consumer fraud Message-ID: <20000824115303.A31598@lemuria.org> References: <20000823215039.23414.qmail@web512.mail.yahoo.com> <00082320410700.18057@frankenstein.lumbercartel.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0pre3i In-Reply-To: <00082320410700.18057@frankenstein.lumbercartel.com> X-Privacy: If you can, please encrypt your mails - finger for key Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu "D. C. Sessions" wrote: > That's why it's essential to have only DVDCCA-approved players > in circulation. As long as there are no bootleg players, the purchaser of > a DVD is assured that his use of it is legal. If bootleg players are allowed, > consumers run the risk of becoming unwitting criminals by accessing the > purchased DVDs on an unauthorized device. how can I become a criminal by accessing my own DVDs ? -- "The net treats censorship as a malfunction and re-routes around it." (John Gilmore) From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 24 08:03:47 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id IAA01160 for dvd-discuss-outgoing; Thu, 24 Aug 2000 08:03:47 -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 IAA01157 for ; Thu, 24 Aug 2000 08:03:46 -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 IAA29853 for ; Thu, 24 Aug 2000 08:03:59 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id IAA27482; Thu, 24 Aug 2000 08:03:58 -0400 (EDT) Date: Thu, 24 Aug 2000 08:03:58 -0400 (EDT) Message-Id: <200008241203.IAA27482@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] OpenCSS - A new open standard for content protection In-Reply-To: <39A48845.1A28D6F6@mit.edu> References: <39A30B91.1211DA6E@uic.edu> <8nvq4n$o46$1@blowfish.isaac.cs.berkeley.edu> <39A3739B.FF46ACD6@mit.edu> <8nvsm9$oa4$1@blowfish.isaac.cs.berkeley.edu> <20000823110239.A27854@lemuria.org> <200008231521.LAA21026@soggy-fibers.ai.mit.edu> <20000823201802.A29058@lemuria.org> <200008231957.PAA23313@soggy-fibers.ai.mit.edu> <39A43999.1D620FE9@mit.edu> <200008232204.SAA24620@soggy-fibers.ai.mit.edu> <39A48845.1A28D6F6@mit.edu> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Ravi Nanavati writes: > "Robert S. Thau" wrote: > > > > .... So, by the letter of the law, if > > "OpenCSS" can be used to circumvent our access control, its > > trafficking and use must be banned. > > > > And that is obviously their true purpose. They have lambasted us > > for choosing such a cryptographically weak cipher ourselves, > > pointing out repeatedly that cryptographically stronger options are > > freely available. Why would they choose such a weak cipher to > > protect their own work, unless their true purpose is in fact to > > exploit ours? > > > > But this is the debate we want to have. The MPAA is now claiming that > since they used CSS to encrypt their copyrighted works we can't use > the CSS cipher for anything else, granting an unconstitutional > process monopoly. Is it? Consider: *) If the MPAA sues and wins, then their right to their player licensing regime has been upheld. *) If the MPAA sues and loses, then the rights of "openCSS" copyright owners to *their* player licensing regime has been upheld. So, if the argument is framed this way, then *either* outcome upholds the rights of *some* copyright owners to license players for their content --- which, IIRC, is the system we are arguing against. I'd rather have a debate which allows a more favorable outcome ... rst From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 24 08:13:19 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id IAA01275 for dvd-discuss-outgoing; Thu, 24 Aug 2000 08:13:19 -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 IAA01272 for ; Thu, 24 Aug 2000 08:13:18 -0400 Received: from Jana-Server (user-38ld7oh.dialup.mindspring.com [209.86.159.17]) by granger.mail.mindspring.net (8.9.3/8.8.5) with SMTP id IAA07712 for ; Thu, 24 Aug 2000 08:13:29 -0400 (EDT) Message-ID: <39A511B5.EF22414D@mindspring.com> Date: Thu, 24 Aug 2000 08:14:45 -0400 From: mickeym X-Mailer: Mozilla 4.7 [en] (Win95; I) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] CNN Links to 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 This article from CNN has links to DeCSS: http://www.cnn.com/2000/TECH/computing/08/23/decss.part2.idg/index.html mickeym From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 24 08:17:05 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id IAA01332 for dvd-discuss-outgoing; Thu, 24 Aug 2000 08:17:05 -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 IAA01329 for ; Thu, 24 Aug 2000 08:17:05 -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 IAA00496 for ; Thu, 24 Aug 2000 08:17:17 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id IAA27494; Thu, 24 Aug 2000 08:17:17 -0400 (EDT) Date: Thu, 24 Aug 2000 08:17:17 -0400 (EDT) Message-Id: <200008241217.IAA27494@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] consumer fraud In-Reply-To: <20000824115303.A31598@lemuria.org> References: <20000823215039.23414.qmail@web512.mail.yahoo.com> <00082320410700.18057@frankenstein.lumbercartel.com> <20000824115303.A31598@lemuria.org> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Tom Vogt writes: > "D. C. Sessions" wrote: > > That's why it's essential to have only DVDCCA-approved > > players in circulation. As long as there are no bootleg players, > > the purchaser of a DVD is assured that his use of it is legal. > > If bootleg players are allowed, consumers run the risk of > > becoming unwitting criminals by accessing the purchased DVDs on > > an unauthorized device. > > how can I become a criminal by accessing my own DVDs ? FWIW, there is a serious answer to this question which predates the DMCA --- criminal copyright infringement (i.e., large-scale commercial piracy). Licensed CSS players prevent a lot more than that, of course, but you can count on the MPAA to stress piracy every chance they get --- just look at their brief for Kaplan. rst From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 24 08:35:16 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id IAA01459 for dvd-discuss-outgoing; Thu, 24 Aug 2000 08:35:16 -0400 Received: from world.std.com (root@world-f.std.com [199.172.62.5]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id IAA01456 for ; Thu, 24 Aug 2000 08:35:15 -0400 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 IAA15176 for ; Thu, 24 Aug 2000 08:33:34 -0400 (EDT) Mime-Version: 1.0 Message-Id: In-Reply-To: <8o1dqu$ppm$1@blowfish.isaac.cs.berkeley.edu> References: <8nvr2p$o5p$1@blowfish.isaac.cs.berkeley.edu> <8o1dqu$ppm$1@blowfish.isaac.cs.berkeley.edu> Date: Thu, 24 Aug 2000 08:33:25 -0400 To: dvd-discuss@eon.law.harvard.edu From: "Arnold G. Reinhold" Subject: Re: [dvd-discuss] 40-bit encryption (Was Re: code as speech) 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 1:57 PM -0700 8/23/2000, David A. Wagner wrote: >Arnold G. Reinhold wrote: >> I think it is reasonable for MPAA to have different responses to each >> threat. For example, mass copying requires fairly expensive and >> specialized equipment. They can track those operations down. > >Yes, you are quite right, as usual. Nonetheless, that's not what the >plaintiffs said in court. They complained that DeCSS created an imminent >threat of mass piracy, of irreparable harm to their revenue stream, that >was not present before DeCSS was published on the 2600 and other web sites. >Personally, I feel your presentation is a more accurate characterization >of the threat model and appropriate defenses. Unfortunately Judge Kaplan believed them, and he is the trier of fact. The question is on what basis to raise this in the appeal. Here are some possibilities: o Kaplan's apparent numerical mistakes in computing bandwidth. I don't think a trier of fact can reasonably find that 2+2=5. "The defendant's gun had a range of 100 yards and the victim was only half a mile a way, so she could easily have shot him." (2+2=4000 is more analogous to what he found.) o Kaplan's acceptance of circumstantial and hearsay evidence, when the plaintiffs could easily have produced the actual pirated files -- if they existed. Why bring real evidence, which can be refuted, when hearsay will do? (The New York Times ran a story a while ago about a prominent defense attorney who said he preferred murder cases because there is one less witness.) o Kaplan's insistence on a July trial instead of the original December date, which prevented the defense from developing a their case in full, along with his complaint that there were never any issues of fact in this case. o The argument that HDTV will give plaintiffs a chance to revise their technology, since the HDTV transition is mandated by law. Even if the appellate court doesn't fault Kaplan's fact finding on this point, it may be important to let them know that the movie industry won't collapse if Kaplan is overturned on first amendment grounds. Arnold Reinhold From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 24 08:47:10 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id IAA01590 for dvd-discuss-outgoing; Thu, 24 Aug 2000 08:47:10 -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 IAA01587 for ; Thu, 24 Aug 2000 08:47:09 -0400 Received: from mediaone.net (h0060b03c5b8b.ne.mediaone.net [24.128.18.77]) by chmls05.mediaone.net (8.8.7/8.8.7) with ESMTP id IAA22362 for ; Thu, 24 Aug 2000 08:47:21 -0400 (EDT) Message-ID: <39A5195A.82578F4@mediaone.net> Date: Thu, 24 Aug 2000 08:47:22 -0400 From: Sphere X-Mailer: Mozilla 4.73 [en] (WinNT; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss Subject: [dvd-discuss] Defense outline? Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu It would be nice to have some sort of outline of what the defense team is working on so we know which issues are worth discussing and which are just hot air at this point. Right now, we need focus. -- Sphere. Is DeCSS.c obscene? Why can't I read it? Can knowledge be forbidden? From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 24 09:18:31 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA01815 for dvd-discuss-outgoing; Thu, 24 Aug 2000 09:18:31 -0400 Received: from smtp03.primenet.com (smtp03.primenet.com [206.165.6.133]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id JAA01812 for ; Thu, 24 Aug 2000 09:18:29 -0400 Received: (from daemon@localhost) by smtp03.primenet.com (8.9.3/8.9.3) id GAA25188 for ; Thu, 24 Aug 2000 06:17:35 -0700 (MST) Received: from sessions.phx.primenet.com(206.132.239.114), claiming to be "heorot.lumbercartel.com" via SMTP by smtp03.primenet.com, id smtpdAAAs2aGiX; Thu Aug 24 06:17:29 2000 Received: from frankenstein.lumbercartel.com (IDENT:dcs@frankenstein.lumbercartel.com [192.168.6.2]) by heorot.lumbercartel.com (8.9.3/8.8.7) with SMTP id GAA30037 for ; Thu, 24 Aug 2000 06:18:32 -0700 From: "D. C. Sessions" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] consumer fraud Date: Thu, 24 Aug 2000 06:02:11 -0700 X-Mailer: KMail [version 1.0.29] Content-Type: text/plain References: <20000823215039.23414.qmail@web512.mail.yahoo.com> <00082320410700.18057@frankenstein.lumbercartel.com> <20000824115303.A31598@lemuria.org> In-Reply-To: <20000824115303.A31598@lemuria.org> MIME-Version: 1.0 Message-Id: <00082406050900.24566@frankenstein.lumbercartel.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, 24 Aug 2000, Tom Vogt wrote: > "D. C. Sessions" wrote: > > That's why it's essential to have only DVDCCA-approved players > > in circulation. As long as there are no bootleg players, the purchaser of > > a DVD is assured that his use of it is legal. If bootleg players are allowed, > > consumers run the risk of becoming unwitting criminals by accessing the > > purchased DVDs on an unauthorized device. > > how can I become a criminal by accessing my own DVDs ? You only own the media. The IP on those DVDs belongs to the copyright holders, who haven't authorized you to access it by anything other than a licensed DVD player. So if you play it on a non-licensed player, you are engaging in an act of copyright violation -- a criminal act. To prevent this horrible possibility, it's necessary that only licensed players be allowed to reach the public. -- | Microsoft: "A reputation for releasing inferior software will make | | it more difficult for a software vendor to induce customers to pay | | for new products or new versions of existing products." | +----------- D. C. & M. V. Sessions ----------+ From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 24 09:28:30 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA01942 for dvd-discuss-outgoing; Thu, 24 Aug 2000 09:28:30 -0400 Received: from mail.glenatl.glenayre.com (mail.glenatl.glenayre.com [157.230.160.51]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id JAA01939 for ; Thu, 24 Aug 2000 09:28:28 -0400 Received: from mindspring.com (mmcgown.glenatl.glenayre.com [157.230.162.136]) by mail.glenatl.glenayre.com (8.10.1/8.10.1) with ESMTP id e7ODS6X22672 for ; Thu, 24 Aug 2000 09:28:06 -0400 (EDT) Message-ID: <39A522E6.EE58CBFC@mindspring.com> Date: Thu, 24 Aug 2000 09:28:06 -0400 From: mickeym X-Mailer: Mozilla 4.61 [en] (WinNT; I) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] consumer fraud Content-Type: text/plain; charset=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 Thu, 24 Aug 2000, Tom Vogt wrote: > > "D. C. Sessions" wrote: > > > That's why it's essential to have only DVDCCA-approved players > > > in circulation. As long as there are no bootleg players, the purchaser of > > > a DVD is assured that his use of it is legal. If bootleg players are allowed, > > > consumers run the risk of becoming unwitting criminals by accessing the > > > purchased DVDs on an unauthorized device. > > > > how can I become a criminal by accessing my own DVDs ? > > You only own the media. The IP on those DVDs belongs to the copyright > holders, who haven't authorized you to access it by anything other than a > licensed DVD player. So if you play it on a non-licensed player, you are > engaging in an act of copyright violation -- a criminal act. To prevent this > horrible possibility, it's necessary that only licensed players be allowed to > reach the public. > But why isn't this a problem with my vhs movies? From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 24 09:45:26 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA02026 for dvd-discuss-outgoing; Thu, 24 Aug 2000 09:45:26 -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 JAA02023 for ; Thu, 24 Aug 2000 09:45:24 -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 PAA20892 for ; Thu, 24 Aug 2000 15:40:46 +0200 Message-ID: <39A526FD.F6F081E5@trustix.com> Date: Thu, 24 Aug 2000 15:45:33 +0200 From: Lars Gaarden Organization: Trustix AS X-Mailer: Mozilla 4.75 [en] (X11; U; Linux 2.4.0-t7p6 i686) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] consumer fraud References: <39A522E6.EE58CBFC@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 mickeym wrote: > > > On Thu, 24 Aug 2000, Tom Vogt wrote: > > > "D. C. Sessions" wrote: > > > > That's why it's essential to have only DVDCCA-approved players > > > > in circulation. As long as there are no bootleg players, the purchaser of > > > > a DVD is assured that his use of it is legal. If bootleg players are allowed, > > > > consumers run the risk of becoming unwitting criminals by accessing the > > > > purchased DVDs on an unauthorized device. > > > > > > how can I become a criminal by accessing my own DVDs ? > > > > You only own the media. The IP on those DVDs belongs to the copyright > > holders, who haven't authorized you to access it by anything other than a > > licensed DVD player. So if you play it on a non-licensed player, you are > > engaging in an act of copyright violation -- a criminal act. To prevent this > > horrible possibility, it's necessary that only licensed players be allowed to > > reach the public. > > > > But why isn't this a problem with my vhs movies? > Because a DVD is digital media. The risk for wide-spread copyright infringement is much larger for digital works, just look at what is happening to the music industry. Congress provided us with additional protection through DMCA, and we are just taking the appropriate steps to protect our works. -- "The fact that Congress elected to leave technologically unsophisticated persons who wish to make fair use of encrypted copyrighted works without the technical means of doing so is a matter for Congress" -Judge Kaplan, in the MPAA vs 2600 ruling. From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 24 10:07:24 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA02283 for dvd-discuss-outgoing; Thu, 24 Aug 2000 10:07:24 -0400 Received: from mail.glenatl.glenayre.com (mail.glenatl.glenayre.com [157.230.160.51]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id KAA02280 for ; Thu, 24 Aug 2000 10:07:17 -0400 Received: from mindspring.com (mmcgown.glenatl.glenayre.com [157.230.162.136]) by mail.glenatl.glenayre.com (8.10.1/8.10.1) with ESMTP id e7OE6tX23087 for ; Thu, 24 Aug 2000 10:06:55 -0400 (EDT) Message-ID: <39A52C00.5F399451@mindspring.com> Date: Thu, 24 Aug 2000 10:06:56 -0400 From: mickeym X-Mailer: Mozilla 4.61 [en] (WinNT; I) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] consumer fraud Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > mickeym wrote: > > > > > On Thu, 24 Aug 2000, Tom Vogt wrote: > > > > "D. C. Sessions" wrote: > > > > > That's why it's essential to have only DVDCCA-approved players > > > > > in circulation. As long as there are no bootleg players, the purchaser of > > > > > a DVD is assured that his use of it is legal. If bootleg players are allowed, > > > > > consumers run the risk of becoming unwitting criminals by accessing the > > > > > purchased DVDs on an unauthorized device. > > > > > > > > how can I become a criminal by accessing my own DVDs ? > > > > > > You only own the media. The IP on those DVDs belongs to the copyright > > > holders, who haven't authorized you to access it by anything other than a > > > licensed DVD player. So if you play it on a non-licensed player, you are > > > engaging in an act of copyright violation -- a criminal act. To prevent this > > > horrible possibility, it's necessary that only licensed players be allowed to > > > reach the public. > > > > > > > But why isn't this a problem with my vhs movies? > > > > > Because a DVD is digital media. The risk for wide-spread copyright > infringement is much larger for digital works, just look at what is > happening to the music industry. Congress provided us with additional > protection through DMCA, and we are just taking the appropriate steps > to protect our works. > Does digital mean it's round? The other movies I buy come in a rectangle shape. Why is the risk larger for circle shapes? From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 24 10:14:14 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA02439 for dvd-discuss-outgoing; Thu, 24 Aug 2000 10:14:14 -0400 Received: from world.std.com (root@world-f.std.com [199.172.62.5]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id KAA02436 for ; Thu, 24 Aug 2000 10:14:13 -0400 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 KAA07355 for ; Thu, 24 Aug 2000 10:11:59 -0400 (EDT) Mime-Version: 1.0 Message-Id: In-Reply-To: <54A50136B6CAD3118FBD00C00D00DDEF037272@mits_perth_com1.mitswa.com.au> References: <54A50136B6CAD3118FBD00C00D00DDEF037272@mits_perth_com1.mitswa.com.au> Date: Thu, 24 Aug 2000 09:30:56 -0400 To: dvd-discuss@eon.law.harvard.edu From: "Arnold G. Reinhold" Subject: Re: [dvd-discuss] key security 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 10:08 AM +0800 8/24/2000, McMeikan, Andrew wrote: >just for info http://www.cl.cam.ac.uk/users/rja14/tamper.html on keeping >cryptographic secrets >here is an excerpt >---- >concrete. The whole assembly is so solid that the seismometers themselves >can be relied upon to detect tampering events with a fairly high >probability. This physical protection is reinforced by random challenge >inspections. >So if systems have to be protected against class III opponents, we might >hazard the following summary: >* if our goal is to merely detect tampering with a positive >probability (as with treaty verification), then we can allow unsupervised >access provided we are allowed to use a massive construction and to perform >challenge inspections; >* if we wish to prevent the loss of a cryptographic key with near >certainty (as with firing codes), then we had better use explosives and we >had better also guard the device. >The above analysis convinced us that military agencies have limited >confidence in the ability of tamper-resistant devices (and especially >portable ones) to withstand a class III opponent with unsupervised access. >Having read an early draft of this paper, a senior agency official confirmed >that chip contents cannot be kept from a capable motivated opponent; at most >one can impose cost and delay. A similar opinion was ventured by a senior >scientist at a leading chip maker. >---- The authors define "class III opponents" as being: "... able to assemble teams of specialists with related and complementary skills backed by great funding resources. They are capable of in-depth analysis of the system, designing sophisticated attacks, and using the most advanced analysis tools." There is no money in breaking CSS. Mass pirates simply copy the encrypted bits. Also section 3 of the referenced paper describes several commercial tamper-proofing techniques the authors call "promising." Note that the paper was presented in 1996, around the same time as the CSS design. I believe a well designed hardware system, with enough master keys to make a recall feasible, would have stood for many years. It certainly would not have been broken by a 15 year old boy. Arnold Reinhold From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 24 10:21:44 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA02489 for dvd-discuss-outgoing; Thu, 24 Aug 2000 10:21:44 -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 KAA02486 for ; Thu, 24 Aug 2000 10:21:42 -0400 Received: from jy01 (user-2inii4l.dialup.mindspring.com [165.121.72.149]) by blount.mail.mindspring.net (8.9.3/8.8.5) with SMTP id KAA23804 for ; Thu, 24 Aug 2000 10:21:53 -0400 (EDT) Message-Id: <200008241421.KAA23804@blount.mail.mindspring.net> X-Sender: jya@pop.pipeline.com X-Mailer: QUALCOMM Windows Eudora Pro Version 4.0 Date: Thu, 24 Aug 2000 10:15:33 -0400 To: dvd-discuss@eon.law.harvard.edu From: John Young Subject: [dvd-discuss] NY Times on Open Source Wars In-Reply-To: <39A522E6.EE58CBFC@mindspring.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 In addition to the NY Times report cited by David Wagner, the paper also has today has a long essay by Peter Wayner on the Open Source wars, which features the DVD battle: http://www.nytimes.com/library/tech/00/08/circuits/articles/24free.html Peter Wayner frequently writes on cryptology and technology. It is a pro-open source piece which elegantly lays out what is wrong with the copyright industry and what is right about open source. Two articles in one day from the Times, a premiere member of the copyright industry. The winds are ablowing, perhaps blowing for a change in the DMCA. From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 24 10:46:50 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA03332 for dvd-discuss-outgoing; Thu, 24 Aug 2000 10:46:50 -0400 Received: from mail.lemuria.org (lemuria.borgfelde.ricardo.de [195.244.103.65]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id KAA03329 for ; Thu, 24 Aug 2000 10:46:49 -0400 Received: from lemuria.org by mail.lemuria.org via rsmtp with bsmtp id for ; Thu, 24 Aug 2000 16:37:29 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Received: by lemuria.org via sendmail with stdio id for dvd-discuss@eon.law.harvard.edu; Thu, 24 Aug 2000 15:23:28 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Date: Thu, 24 Aug 2000 15:23:28 +0200 From: Tom Vogt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] consumer fraud Message-ID: <20000824152328.A32236@lemuria.org> References: <20000823215039.23414.qmail@web512.mail.yahoo.com> <00082320410700.18057@frankenstein.lumbercartel.com> <20000824115303.A31598@lemuria.org> <200008241217.IAA27494@soggy-fibers.ai.mit.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0pre3i In-Reply-To: <200008241217.IAA27494@soggy-fibers.ai.mit.edu> X-Privacy: If you can, please encrypt your mails - finger for key Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu "Robert S. Thau" wrote: > > how can I become a criminal by accessing my own DVDs ? > > FWIW, there is a serious answer to this question which predates the > DMCA --- criminal copyright infringement (i.e., large-scale commercial > piracy). I'm aware of that. however, I was talking about ACCESSING (as in: viewing). we all know that piracy - especially large-scale commercial piracy - does not use or require players, but uses pressing machines. > Licensed CSS players prevent a lot more than that, of course, but you > can count on the MPAA to stress piracy every chance they get --- just > look at their brief for Kaplan. it doesn't become less false because they mention it often. the question remains: am I a criminal because I access (and *only* access) my own collection of DVDs? if not, can I used decss to do so? if no, why not? if yes, can I distribute decss to my friends for the same, legal, purpose? if so, can I distribute it to other people? -- "The net treats censorship as a malfunction and re-routes around it." (John Gilmore) From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 24 11:04:50 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA03648 for dvd-discuss-outgoing; Thu, 24 Aug 2000 11:04:50 -0400 Received: from bigbrother.net (root@w131.z208177180.chi-il.dsl.cnc.net [208.177.180.131]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id LAA03645 for ; Thu, 24 Aug 2000 11:04:48 -0400 Received: from localhost (sterno@localhost) by bigbrother.net (8.10.1/8.9.3) with ESMTP id e7OF51d03825 for ; Thu, 24 Aug 2000 10:05:01 -0500 Date: Thu, 24 Aug 2000 10:05:00 -0500 (CDT) From: Steve Stearns To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] consumer fraud In-Reply-To: <20000824152328.A32236@lemuria.org> Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, 24 Aug 2000, Tom Vogt wrote: > > Licensed CSS players prevent a lot more than that, of course, but you > > can count on the MPAA to stress piracy every chance they get --- just > > look at their brief for Kaplan. > it doesn't become less false because they mention it often. Truth is all in perception. Kaplan's siding with the prosecution and railing against the evil hackers every chance he got illustrates this rather well. > the question remains: am I a criminal because I access (and *only* access) > my own collection of DVDs? no. > if not, can I used decss to do so? I guess we'll find out after the appeal :) > if no, why not? Here's my thought on it. DeCSS should not be illegal for the same reason that a book describing how to break into computer systems should not be illegal. Either one simply provides instructions on how to do something and there is a long standing principle of not making something illegal based on its potential criminal use (if it has other puposes). If DeCSS facilitates easier piracy of DVD's (still unproven to my knowledge), that doesn't make it something illegal. Now, to take DeCSS and use it to pirate DVD's, fine that's illegal and prosecutable. The problem that Kaplan seems to run into is the differentiation between the spirit and the letter of the law. The letter of the law is badly written and somewhat subject to interpretation. The spirit of the law was to make it harder to pirate digital media. Does DeCSS make it harder to pirate digital media? No. So why is it illegal? > if yes, can I distribute decss to my friends for the same, legal, purpose? > if so, can I distribute it to other people? Depends on the final outcome of the case. This does bring up a question I have though. Right now, the case is working on going to appeal. So, what is the application of case law from this trial to other people who might conceivably be prosecuted. Can the results of this trial be referred to even though it's in appeal or is it not considered case law until the appeals have all been heard? ---Steve From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 24 12:04:34 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA04226 for dvd-discuss-outgoing; Thu, 24 Aug 2000 12:04:34 -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 MAA04223 for ; Thu, 24 Aug 2000 12:04:31 -0400 Received: (from paul@localhost) by dial144.roadrunner.com (8.8.7/8.8.7) id KAA00798 for dvd-discuss@eon.law.harvard.edu; Thu, 24 Aug 2000 10:06:09 -0600 Date: Thu, 24 Aug 2000 10:06:07 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] more errors in Kaplan's Message-ID: <20000824100607.A667@localhost> References: <20000823214803.2173.qmail@web510.mail.yahoo.com> <8o238l$q84$1@blowfish.isaac.cs.berkeley.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <8o238l$q84$1@blowfish.isaac.cs.berkeley.edu>; from daw@cs.berkeley.edu on Wed, Aug 23, 2000 at 08:02:45PM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Wed, Aug 23, 2000 at 08:02:45PM -0700, David A. Wagner wrote: > Bryan Taylor wrote: > > You just ruled that "full-disclosure" ala bug-traq is illegal since it > > violates the DMCA. Security by protecting insecurity is an oxymoron > > that shouldn't even meet a rational basis test. > [...] > > Exploits are critical to the elimination of security defects, since > > they (1) tangibly prove the existence of the problem, (2) provide an > > objective, vendor independent test for repair, (3) foster learning from > > others mistakes. > > Ding-ding-ding. That's a nice explanation of part of the reason why a > number of computer scientists are concerned about the potential effects > of the DMCA on research in computer security. If you are restricted from > publishing the primary sources used in your research, other researchers > may not be able to verify your findings. If others can't independently > verify your findings, it's not science. That's a real cause for concern. > > But surely I'm preaching to the choir here. Indeed. This reminds me to post the following quote: Universal v. Reimerdes, SDNY decision opinion, p. 33-34 [ Page 33, bottom ] Yet defendants' construction, if adopted, would limit the application of the statute to access control measures that thwart circumvention, but withhold protection for those measures that [ Page 34, top ] can be circumvented. In other words, defendants would have the Court construe the statute to offer protection where none is needed but to withhold protection precisely where protection is essential. The Court declines to do so. I think his either/or for offering protection is a misreading of the D's position, but I'll leave that blunder alone for the time being. In Kaplan's "analysis" part of the protection the Court offers is banning other implementation of the diseased cryptosystem. This of course bars the full-disclosure Bryan and David mention. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 24 12:13:00 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA04374 for dvd-discuss-outgoing; Thu, 24 Aug 2000 12:13:00 -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 MAA04371 for ; Thu, 24 Aug 2000 12:12:58 -0400 Message-ID: <20000824161240.3127.qmail@web509.mail.yahoo.com> Received: from [131.44.121.4] by web509.mail.yahoo.com; Thu, 24 Aug 2000 09:12:40 PDT Date: Thu, 24 Aug 2000 09:12:40 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] Defense outline? To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --- Sphere wrote: > It would be nice to have some sort of > outline of what the defense team is > working on so we know which issues are > worth discussing and which are just > hot air at this point. Umm. There is a little thing called attourney-client privilidge that prevents the defense team from disclosing their arguments. > Right now, we need focus. Actually, I think most of us are relaxing right now after a heavy round of battle. There was a flurry of activity leading up to the trial, which intensified during trial -- I for one kind of want to step back, let my brain rest, and come back later with a fresh look. Obviously, though an appeal is based on an argument that the trial judge abused his discretion in his findings of fact or law, so what we've got to do is comb over his opinion and find every mistake. Soon enough, the defense will file it's appeal to the 2nd Circuit and we'll start work on an amicus for that appeal. Actually, I'm kind on in the mood to write/petition to Congress. Anybody up for a letter-writing campaign? Other things that are going on now are the Copyright Office's RFC reply comments on Section 109 & 117 due Sept 5. The CA case is proceeding (maybe we could write a brief on clickwraps and preemption of RE clauses). I have no idea what's going on in the Connecticut case. Does anybody know who the judge is or who the defense lawyers are? __________________________________________________ Do You Yahoo!? Yahoo! Mail - Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 24 12:18:30 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA04510 for dvd-discuss-outgoing; Thu, 24 Aug 2000 12:18:30 -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 MAA04507 for ; Thu, 24 Aug 2000 12:18:27 -0400 Received: (from paul@localhost) by dial144.roadrunner.com (8.8.7/8.8.7) id KAA00808 for dvd-discuss@eon.law.harvard.edu; Thu, 24 Aug 2000 10:20:08 -0600 Date: Thu, 24 Aug 2000 10:20:07 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] consumer fraud Message-ID: <20000824102007.B667@localhost> References: <20000823215039.23414.qmail@web512.mail.yahoo.com> <00082320410700.18057@frankenstein.lumbercartel.com> <20000824115303.A31598@lemuria.org> Mime-Version: 1.0 Content-Type: text/plain; charset=iso-8859-1 Content-Transfer-Encoding: 8bit X-Mailer: Mutt 1.0.1i In-Reply-To: <20000824115303.A31598@lemuria.org>; from tom@lemuria.org on Thu, Aug 24, 2000 at 11:53:03AM +0200 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, Aug 24, 2000 at 11:53:03AM +0200, Tom Vogt wrote: > "D. C. Sessions" wrote: > > That's why it's essential to have only DVDCCA-approved players > > in circulation. As long as there are no bootleg players, the purchaser of > > a DVD is assured that his use of it is legal. If bootleg players are > > allowed, > > consumers run the risk of becoming unwitting criminals by accessing the > > purchased DVDs on an unauthorized device. > > how can I become a criminal by accessing my own DVDs ? Universal v. Reimerdes, SDNY decision opinion, p. 31, footnote 137: [ ... ] The DMCA proscribes trafficking in technology that decrypts or avoids an access control measure without the copyright holder consenting to the decryption or avoidance. See JUDICIARY COMM. REP. at 17018 (fair use applies "where the access is authorized"). Defendants' argument seems to be a corruption of the first sale doctrine, which holds that the copyright holder, notwithstanding the exclusive distribution right conferred by section 106(3) of the Copyright Act, 17 U.S.C. § 106(3), is deemed by its "first sale" of a copy of the copyrighted work to have consented to subsequent sale of the copy. See generally 2 NIMMER §§ 8.11 - 8.12. This is what Kaplan says. As far as criminal, rather than "merely" civil liability, some additional conditions beyond simply doing circumvention would have to be met. Those conditions are spelled out in later sections of chapter 12, title 17 U.S.C. You'd need to come visit us here in the U.S., at least I hope that would be necessary. The obvious problem with what Kaplan says is that he's wrong. Section 109(c) grants a statutory right to make a public performance, and section 1201(c) says that nothing in 1201 will affect fair use. I can't explain his conclusion, as far as I can see it is a flat contravention of U.S. Federal Statute. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 24 12:20:31 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA04599 for dvd-discuss-outgoing; Thu, 24 Aug 2000 12:20:31 -0400 Received: from bigbrother.net (root@w131.z208177180.chi-il.dsl.cnc.net [208.177.180.131]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id MAA04596 for ; Thu, 24 Aug 2000 12:20:29 -0400 Received: from localhost (sterno@localhost) by bigbrother.net (8.10.1/8.9.3) with ESMTP id e7OGKgP08502 for ; Thu, 24 Aug 2000 11:20:42 -0500 Date: Thu, 24 Aug 2000 11:20:42 -0500 (CDT) From: Steve Stearns To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Defense outline? In-Reply-To: <20000824161240.3127.qmail@web509.mail.yahoo.com> Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, 24 Aug 2000, Bryan Taylor wrote: > Actually, I'm kind on in the mood to write/petition to Congress. > Anybody up for a letter-writing campaign? Sounds good to me. One point that became very clear in this whole debacle is that we can save ourselves a whole lot of trouble if we can keep bad laws like the DMCA out of the books in the first place. Of course a lot of this comes down to who has the deeper pockets, but at least writing a letter is a good start. ---Steve From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 24 12:26:06 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA04735 for dvd-discuss-outgoing; Thu, 24 Aug 2000 12:26:06 -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 MAA04732 for ; Thu, 24 Aug 2000 12:26:05 -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 MAA23789 for ; Thu, 24 Aug 2000 12:26:18 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id MAA29142; Thu, 24 Aug 2000 12:26:18 -0400 (EDT) Date: Thu, 24 Aug 2000 12:26:18 -0400 (EDT) Message-Id: <200008241626.MAA29142@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] consumer fraud In-Reply-To: <20000824152328.A32236@lemuria.org> References: <20000823215039.23414.qmail@web512.mail.yahoo.com> <00082320410700.18057@frankenstein.lumbercartel.com> <20000824115303.A31598@lemuria.org> <200008241217.IAA27494@soggy-fibers.ai.mit.edu> <20000824152328.A32236@lemuria.org> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Tom Vogt writes: > > Licensed CSS players prevent a lot more than that, of course, but you > > can count on the MPAA to stress piracy every chance they get --- just > > look at their brief for Kaplan. > > it doesn't become less false because they mention it often. No, but it does become more convincing --- the more so if it isn't challenged, or if the challenges seem to hinge on narrow technicalities. Propaganda is also part of this fight, and theirs so far has been pretty darn good. rst From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 24 12:26:40 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA04746 for dvd-discuss-outgoing; Thu, 24 Aug 2000 12:26:40 -0400 Received: from dial188.roadrunner.com (dial188.cybermesa.com [209.12.75.188] (may be forged)) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id MAA04740 for ; Thu, 24 Aug 2000 12:26:36 -0400 Received: (from paul@localhost) by dial188.roadrunner.com (8.8.7/8.8.7) id KAA00945 for dvd-discuss@eon.law.harvard.edu; Thu, 24 Aug 2000 10:28:12 -0600 Date: Thu, 24 Aug 2000 10:28:11 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] consumer fraud Message-ID: <20000824102811.C667@localhost> References: <20000824152328.A32236@lemuria.org> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: ; from sterno@bigbrother.net on Thu, Aug 24, 2000 at 10:05:00AM -0500 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, Aug 24, 2000 at 10:05:00AM -0500, Steve Stearns wrote: > On Thu, 24 Aug 2000, Tom Vogt wrote: > > > > Licensed CSS players prevent a lot more than that, of course, but you > > > can count on the MPAA to stress piracy every chance they get --- just > > > look at their brief for Kaplan. > > it doesn't become less false because they mention it often. > > Truth is all in perception. Kaplan's siding with the prosecution and > railing against the evil hackers every chance he got illustrates this > rather well. > > > the question remains: am I a criminal because I access (and *only* access) > > my own collection of DVDs? > > no. > > > if not, can I used decss to do so? > > I guess we'll find out after the appeal :) > > > if no, why not? > > Here's my thought on it. DeCSS should not be illegal for the same reason > that a book describing how to break into computer systems should not be > illegal. Either one simply provides instructions on how to do > something and there is a long standing principle of not making something > illegal based on its potential criminal use (if it has other puposes). If > DeCSS facilitates easier piracy of DVD's (still unproven to my knowledge), [ ... ] To the extent you're talking about activities that would never qualify as fair use (unauthorized disc pressing operations), DeCSS *adds* to the work one must do make the illegal copies. Before running DeCSS, one has a perfectly valid and usable disk-image. Afterwards, one needs to re-assemble the bits of Humpty-Dumpty to make a new working disk-image. Unfortunately, I'm not sure that is in evidence. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 24 12:30:35 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA04842 for dvd-discuss-outgoing; Thu, 24 Aug 2000 12:30:35 -0400 Received: from dial188.roadrunner.com (dial188.cybermesa.com [209.12.75.188] (may be forged)) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id MAA04839 for ; Thu, 24 Aug 2000 12:30:32 -0400 Received: (from paul@localhost) by dial188.roadrunner.com (8.8.7/8.8.7) id KAA00955 for dvd-discuss@eon.law.harvard.edu; Thu, 24 Aug 2000 10:32:07 -0600 Date: Thu, 24 Aug 2000 10:32:07 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] consumer fraud Message-ID: <20000824103206.D667@localhost> References: <20000823215039.23414.qmail@web512.mail.yahoo.com> <00082320410700.18057@frankenstein.lumbercartel.com> <20000824115303.A31598@lemuria.org> <00082406050900.24566@frankenstein.lumbercartel.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <00082406050900.24566@frankenstein.lumbercartel.com>; from dcs@mailhost.lumbercartel.com on Thu, Aug 24, 2000 at 06:02:11AM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, Aug 24, 2000 at 06:02:11AM -0700, D. C. Sessions wrote: > On Thu, 24 Aug 2000, Tom Vogt wrote: > > "D. C. Sessions" wrote: > > > That's why it's essential to have only DVDCCA-approved players > > > in circulation. As long as there are no bootleg players, the purchaser of > > > a DVD is assured that his use of it is legal. If bootleg players are allowed, > > > consumers run the risk of becoming unwitting criminals by accessing the > > > purchased DVDs on an unauthorized device. > > > > how can I become a criminal by accessing my own DVDs ? > > You only own the media. The IP on those DVDs belongs to the copyright > holders, who haven't authorized you to access it by anything other than a > licensed DVD player. So if you play it on a non-licensed player, you are > engaging in an act of copyright violation -- a criminal act. To prevent this > horrible possibility, it's necessary that only licensed players be allowed to > reach the public. But, A. 17 U.S.C. 109(c) clearly states that I have the right to make a public performance without the authority of the copyright owner. B. 17 U.S.C. 1201(c) says that fair use is unaffected by the provision of s.1201. C. Either I have the right to make public performance, or 109(c) and/or 1201(c) have been nullified. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 24 12:36:29 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA05004 for dvd-discuss-outgoing; Thu, 24 Aug 2000 12:36:29 -0400 Received: from dial84.roadrunner.com (dial84.cybermesa.com [209.12.75.84] (may be forged)) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id MAA05001 for ; Thu, 24 Aug 2000 12:36:24 -0400 Received: (from paul@localhost) by dial84.roadrunner.com (8.8.7/8.8.7) id KAA01133 for dvd-discuss@eon.law.harvard.edu; Thu, 24 Aug 2000 10:38:01 -0600 Date: Thu, 24 Aug 2000 10:38:00 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] consumer fraud Message-ID: <20000824103800.E667@localhost> References: <20000823215039.23414.qmail@web512.mail.yahoo.com> <00082320410700.18057@frankenstein.lumbercartel.com> <20000824115303.A31598@lemuria.org> <20000824102007.B667@localhost> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <20000824102007.B667@localhost>; from fenimore@roadrunner.com on Thu, Aug 24, 2000 at 10:20:07AM -0600 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, Aug 24, 2000 at 10:20:07AM -0600, Paul Fenimore wrote: > decryption or avoidance. See JUDICIARY COMM. REP. at 17018 (fair use Should be, decryption or avoidance. See JUDICIARY COMM. REP. at 17-18 (fair use From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 24 12:48:27 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA05231 for dvd-discuss-outgoing; Thu, 24 Aug 2000 12:48:27 -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 MAA05228 for ; Thu, 24 Aug 2000 12:48:26 -0400 Message-ID: <20000824164808.9164.qmail@web509.mail.yahoo.com> Received: from [131.44.121.4] by web509.mail.yahoo.com; Thu, 24 Aug 2000 09:48:08 PDT Date: Thu, 24 Aug 2000 09:48:08 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] more errors in Kaplan's To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-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: > In Kaplan's "analysis" part of the protection the Court offers is > banning other implementation of the diseased cryptosystem. This of > course bars the full-disclosure Bryan and David mention. I believe this country is going in a very, very dangerous direction with regard to regulation of science. I cannot comprehend, let alone condone, the rationality of laws that protect insecurity under the pretext of protecting security. __________________________________________________ Do You Yahoo!? Yahoo! Mail - Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 24 12:53:23 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA05365 for dvd-discuss-outgoing; Thu, 24 Aug 2000 12:53:23 -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 MAA05362 for ; Thu, 24 Aug 2000 12:53:22 -0400 Received: from mit.edu (h0050da62b39d.ne.mediaone.net [24.147.217.121]) by chmls06.mediaone.net (8.8.7/8.8.7) with ESMTP id MAA12309; Thu, 24 Aug 2000 12:53:30 -0400 (EDT) Message-ID: <39A55386.ED5C0458@mit.edu> Date: Thu, 24 Aug 2000 12:55:34 -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] consumer fraud References: <20000823215039.23414.qmail@web512.mail.yahoo.com> <00082320410700.18057@frankenstein.lumbercartel.com> <20000824115303.A31598@lemuria.org> <00082406050900.24566@frankenstein.lumbercartel.com> <20000824103206.D667@localhost> Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Paul Fenimore wrote: > > On Thu, Aug 24, 2000 at 06:02:11AM -0700, D. C. Sessions wrote: > > On Thu, 24 Aug 2000, Tom Vogt wrote: > > > "D. C. Sessions" wrote: > > > > That's why it's essential to have only DVDCCA-approved players > > > > in circulation. As long as there are no bootleg players, the purchaser of > > > > a DVD is assured that his use of it is legal. If bootleg players are allowed, > > > > consumers run the risk of becoming unwitting criminals by accessing the > > > > purchased DVDs on an unauthorized device. > > > > > > how can I become a criminal by accessing my own DVDs ? > > > > You only own the media. The IP on those DVDs belongs to the copyright > > holders, who haven't authorized you to access it by anything other than a > > licensed DVD player. So if you play it on a non-licensed player, you are > > engaging in an act of copyright violation -- a criminal act. To prevent this > > horrible possibility, it's necessary that only licensed players be allowed to > > reach the public. > > > But, > > A. 17 U.S.C. 109(c) clearly states that I have the right to make a public > performance without the authority of the copyright owner. > > B. 17 U.S.C. 1201(c) says that fair use is unaffected by the provision of > s.1201. > > C. Either I have the right to make public performance, or 109(c) and/or > 1201(c) have been nullified. > You are entitled to make public performances of the MPAA's copyrighted works using DVD CCA-licensed DVD players. Public performance is an exclusive right of the copyright owner (from 17 U.S.C 106) that is limited by 109(c). All that 109(c) says is that you do not additionally require the authority of the copyright owner for a public performance. It does not say (and could not say since 17 U.S.C 1201 was enacted long after 17 U.S.C 109) that you do not require the authority of the copyright owner to circumvent at 1201 access control for the purpose of public performance. This conclusion would be nonsensical because you need the authority of the copyright owner to circumvent a 1201 access control even for the purpose of private performance. - Ravi Nanavati From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 24 12:55:44 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA05446 for dvd-discuss-outgoing; Thu, 24 Aug 2000 12:55:44 -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 MAA05443 for ; Thu, 24 Aug 2000 12:55:43 -0400 Message-ID: <20000824165525.29848.qmail@web514.mail.yahoo.com> Received: from [131.44.121.4] by web514.mail.yahoo.com; Thu, 24 Aug 2000 09:55:25 PDT Date: Thu, 24 Aug 2000 09:55:25 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] Defense outline? To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --- Steve Stearns wrote: > On Thu, 24 Aug 2000, Bryan Taylor wrote: > > > Actually, I'm kind on in the mood to write/petition to Congress. > > Anybody up for a letter-writing campaign? > > Sounds good to me. So what is the most effective way to go about it? Does anybody have links to how to find your Congress-critter's address? Are there any best-known-methods for congressional letter writing? > [...] One point that became very clear in this whole > debacle is that we can save ourselves a whole lot of trouble if we > can keep bad laws like the DMCA out of the books in the first > place. Of course a lot of this comes down to who has the deeper > pockets, but at least writing a letter is a good start. There are currently two separate proposals for protecting databases. I suspect that one is better than the other, but I don't know which, and I don't know if the "better" one is acceptable. __________________________________________________ Do You Yahoo!? Yahoo! Mail - Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 24 13:01:29 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA05565 for dvd-discuss-outgoing; Thu, 24 Aug 2000 13:01:29 -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 NAA05562 for ; Thu, 24 Aug 2000 13:01:26 -0400 Message-ID: <20000824170107.10168.qmail@web515.mail.yahoo.com> Received: from [131.44.121.4] by web515.mail.yahoo.com; Thu, 24 Aug 2000 10:01:07 PDT Date: Thu, 24 Aug 2000 10:01:07 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] consumer fraud To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-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: > > You are entitled to make public performances of the MPAA's > copyrighted works using DVD CCA-licensed DVD players. Public > performance is an exclusive right of the copyright owner > (from 17 U.S.C 106) that is limited by 109(c). All that > 109(c) says is that you do not additionally require the > authority of the copyright owner for a public performance. > It does not say (and could not say since 17 U.S.C 1201 was > enacted long after 17 U.S.C 109) that you do not require the > authority of the copyright owner to circumvent at 1201 access > control for the purpose of public performance. This conclusion > would be nonsensical because you need the authority of the > copyright owner to circumvent a 1201 access control even for > the purpose of private performance. > If I don't require the authority of the copyright holder to display the work to people in the same location as the copy I own, then if I use DeCSS, which requires the DVD be in the drive, for this, then what is the argument that I need the authority of the copyright holder? Doesn't 109(c) really mean that such authority is conveyed at First Sale? Isn't the promotion of reward that the Copyright Act seeks realized fully at First Sale? __________________________________________________ Do You Yahoo!? Yahoo! Mail - Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 24 13:04:48 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA05608 for dvd-discuss-outgoing; Thu, 24 Aug 2000 13:04:48 -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 NAA05605 for ; Thu, 24 Aug 2000 13:04:44 -0400 Received: (from paul@localhost) by dial218.roadrunner.com (8.8.7/8.8.7) id LAA01276 for dvd-discuss@eon.law.harvard.edu; Thu, 24 Aug 2000 11:06:25 -0600 Date: Thu, 24 Aug 2000 11:06:24 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] OpenCSS - A new open standard for content protection Message-ID: <20000824110623.F667@localhost> References: <8nvq4n$o46$1@blowfish.isaac.cs.berkeley.edu> <39A3739B.FF46ACD6@mit.edu> <8nvsm9$oa4$1@blowfish.isaac.cs.berkeley.edu> <20000823110239.A27854@lemuria.org> <200008231521.LAA21026@soggy-fibers.ai.mit.edu> <20000823201802.A29058@lemuria.org> <200008231957.PAA23313@soggy-fibers.ai.mit.edu> <39A43999.1D620FE9@mit.edu> <200008232204.SAA24620@soggy-fibers.ai.mit.edu> <39A48845.1A28D6F6@mit.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <39A48845.1A28D6F6@mit.edu>; from ravi_n@mit.edu on Wed, Aug 23, 2000 at 10:28:21PM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Wed, Aug 23, 2000 at 10:28:21PM -0400, Ravi Nanavati wrote: > "Robert S. Thau" wrote: [ ... ] > [About OpenCSS not being a circumvention device or a component > of one] > > That is, as others have pointed out, debatable. > > > > > > The defendants claim their "OpenCSS" is intended solely as a player > > for their "OpenCSS"-licensed content, and that their use of the CSS > > cipher is intended solely to enable viewing of those works, and not > > to enable anyone to view ours. > > > > However, the law bans distribution of devices which "have only a > > limited commercially significant purpose other to circumvent", and > > viewing their paltry selection of amateur videos is hardly a > > commercially significant purpose. So, by the letter of the law, if > > "OpenCSS" can be used to circumvent our access control, its > > trafficking and use must be banned. > > > > And that is obviously their true purpose. They have lambasted us > > for choosing such a cryptographically weak cipher ourselves, > > pointing out repeatedly that cryptographically stronger options are > > freely available. Why would they choose such a weak cipher to > > protect their own work, unless their true purpose is in fact to > > exploit ours? > > > > But this is the debate we want to have. The MPAA is now claiming that > since they used CSS to encrypt their copyrighted works we can't use > the CSS cipher for anything else, granting an unconstitutional > process monopoly. Can I use CSS to encrypt movies (even if I have the > authority of the copyright holder)? No, says the MPAA. > How about email? How about my SSH session? Under this argument > they'd say no to that as well. They're trying to hide this grant > by focusing on the ban of devices and their components, not on > unlicensed performers of a process, and we need to expose it. [ ... ] In section II.B.1.a.(1) "CSS Effectively Controls Access to Copyrighted Works", Kaplan makes twin arguments for the effectiveness of CSS. The first argument cites the statute for legal authority, and notes that CSS requires the application of information as specified in s.1201(a)(3)(B). This argument is made on p. 32, para. 2, First, the statute expressly provides that "a technological measure 'effectively controls access to a work' if the measure, in the ordinary course of its operation, requires the application of information [ ... ] Then things get interesting. The second argument Kaplan makes begins with para.3, at the bottom of p. 32 and continues onto p. 33, ending with the first para. on that page. Kaplan cites the section-by-section analysis of the House bill by the House Judiciary Committee as legal authority, which is peculiar because there is in fact a statutory basis the argument he makes here. My impression of what Kaplan writes is supposed to be further support for the conclusion of "effectiveness". _However_, it is not further support for the specific finding that information must be applied! In fact this second argument is that _DeCSS_ is a process, that this process allows access, and that this establishes the effectiveness of _CSS_! [ Page 33, Universal v. Reimerdes, SDNY decision opinion ] As CSS, in the ordinary course of its operation--that is, when DeCSS or some other decryption program is not employed--"actually works" to prevent access to the protected work, it "effectively controls access" within the contemplation of the statute. While this isn't blatantly wrong (because the two processes are the same) it does leave the unwary reader with the impression that CSS is _only_ a "technological measure", that it is not a "process" too; and that DeCSS might implement a _different_ process even if one understands that CSS is both "process" and "technology". There may be other place where Kaplan uses the statute to grant a patent to (some) copyright owners, but this certainly one place where the patent-like control to authors arises. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 24 13:08:25 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA05677 for dvd-discuss-outgoing; Thu, 24 Aug 2000 13:08:25 -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 NAA05674 for ; Thu, 24 Aug 2000 13:08:24 -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 MAA13659 for ; Thu, 24 Aug 2000 12:08:36 -0500 (CDT) Message-ID: <39A55730.12FAD2C2@uic.edu> Date: Thu, 24 Aug 2000 12:11:12 -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] more errors in Kaplan's Content-Type: text/plain; charset=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 believe this country is going in a very, very > dangerous direction with regard to regulation of > science. I cannot comprehend, let alone condone, > the rationality of laws that protect insecurity under > the pretext of protecting security. Kaplan's ruling strikes right at the heart of scientific research. Nothing is more fundamental to scientific progress then the right to publish the result of your studies. The purpose of publishing your results isn't to show how clever you are; the purpose of publishing your results is to allow other people to confirm your work by duplicating your results. Kaplan has announced that the "encryption research" exception only allows you to reverse engineer, but not to publish the results of your work. He has so bought into the corporate corruption of "science" -- where research is done in secrecy, intended for business purposes only, and the results shrouded in secrecy so that they will benefit only the researcher's employer, that he doesn't even understand that he has outlawed real encryption research -- the openly published, peer-reviewed kind. From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 24 13:19:32 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA05834 for dvd-discuss-outgoing; Thu, 24 Aug 2000 13:19:32 -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 NAA05831 for ; Thu, 24 Aug 2000 13:19:30 -0400 Received: from mit.edu (h0050da62b39d.ne.mediaone.net [24.147.217.121]) by chmls06.mediaone.net (8.8.7/8.8.7) with ESMTP id NAA24171; Thu, 24 Aug 2000 13:19:39 -0400 (EDT) Message-ID: <39A559A7.3E448D40@mit.edu> Date: Thu, 24 Aug 2000 13:21:43 -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] more errors in Kaplan's References: <20000824164808.9164.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: > > In Kaplan's "analysis" part of the protection the Court offers is > > banning other implementation of the diseased cryptosystem. This of > > course bars the full-disclosure Bryan and David mention. > > I believe this country is going in a very, very dangerous direction > with regard to regulation of science. I cannot comprehend, let alone > condone, the rationality of laws that protect insecurity under the > pretext of protecting security. > I comprehend it. Legal protection is the only way to protect systems that are insecure-by-design, like CSS (or any other software-player scheme). I don't condone it because, regardless of how you feel about the MPAA and DVDs, there will be lots of collateral damage. Microsoft and their plans for a permanent monopoly are just the beginning. Consider: (1) Banks usually have many web pages as part of their online banking systems. Some of them are almost certainly copyrightable. (2) Suppose a bank copyrights those pages. They are protected by an "access control" mechanism --- entering your account number and PIN. (3) Does that mean banks will use the DMCA to suppress research into and discussion of exploits that allow unauthorized access to online banking systems? (Especially considering how horrible bank computer systems are getting these days with all the mergers and other confusion. Over the past few months I've had so many fights with my bank over erroneous charges posted to my account that I am probably going to move my accounts soon). Of course this could all be avoided with an interpretation of access that is commerical access. The DMCA never applies because you were always authorized to access the bank's online banking web pages once you had an account and signed up for online banking. The device you use to access them (at least to the extent you are accessing copyrighted works) is your problem not the bank's. If you steal money with an exploit, that's another matter, of course. - Ravi Nanavati From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 24 13:56:50 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA06274 for dvd-discuss-outgoing; Thu, 24 Aug 2000 13:56:50 -0400 Received: from mail.lemuria.org (lemuria.borgfelde.ricardo.de [195.244.103.65]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id NAA06271 for ; Thu, 24 Aug 2000 13:56:48 -0400 Received: from lemuria.org by mail.lemuria.org via rsmtp with bsmtp id for ; Thu, 24 Aug 2000 19:53:24 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Received: by lemuria.org via sendmail with stdio id for dvd-discuss@eon.law.harvard.edu; Thu, 24 Aug 2000 16:52:23 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Date: Thu, 24 Aug 2000 16:52:23 +0200 From: Tom Vogt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] consumer fraud Message-ID: <20000824165223.D32236@lemuria.org> References: <20000823215039.23414.qmail@web512.mail.yahoo.com> <00082320410700.18057@frankenstein.lumbercartel.com> <20000824115303.A31598@lemuria.org> <00082406050900.24566@frankenstein.lumbercartel.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0pre3i In-Reply-To: <00082406050900.24566@frankenstein.lumbercartel.com> X-Privacy: If you can, please encrypt your mails - finger for key Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu "D. C. Sessions" wrote: > > how can I become a criminal by accessing my own DVDs ? > > You only own the media. than I have been deceived at the sale, since a DVD *medium* costs maybe $2, but not $20. > The IP on those DVDs belongs to the copyright > holders, who haven't authorized you to access it by anything other than a > licensed DVD player. the copyright holder has been compensated at the point of sale. since I have not signed any license restricting me further, this is a normal sales contract, and the copyright holder only retains those rights copyright law gives him. access control is not among them. > So if you play it on a non-licensed player, you are > engaging in an act of copyright violation -- a criminal act. copyright is one of the rare laws that are quite plain on what they allow and forbid (at least in my country). since I am not engaging in any of the acts mentioned in the copyright law (copying, broadcasting, etc) I am in no violation of the law. -- "The net treats censorship as a malfunction and re-routes around it." (John Gilmore) From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 24 14:00:59 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA06394 for dvd-discuss-outgoing; Thu, 24 Aug 2000 14:00:59 -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 OAA06391 for ; Thu, 24 Aug 2000 14:00:58 -0400 Message-ID: <20000824180040.5114.qmail@web512.mail.yahoo.com> Received: from [131.44.121.4] by web512.mail.yahoo.com; Thu, 24 Aug 2000 11:00:40 PDT Date: Thu, 24 Aug 2000 11:00:40 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] more errors in Kaplan's To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-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: > > I believe this country is going in a very, very > > dangerous direction with regard to regulation of > > science. I cannot comprehend, let alone condone, > > the rationality of laws that protect insecurity under > > the pretext of protecting security. > > Kaplan's ruling strikes right at the heart of > scientific research. Nothing is more fundamental to > scientific progress then the right to publish the > result of your studies. The purpose of publishing your > results isn't to show how clever you are; the purpose > of publishing your results is to allow other people to > confirm your work by duplicating your results. Exactly. I think this should now become a center-piece of our argument. Kaplan's reasoning is that the "functionality" inherenet in a precise description of a process, even if embodied in a literary work, reduces the standard of protection of the description from strict to intermediate scrutiny. Science IS the precise description of processes, so his reasoning implies that ALL scientific writing falls under the lower standard. To claim that the protection of Copyright demands lowered protection for the product of computer science is to ignore the very purpose of Copyright. The First Amendment standard that Kaplan uses would have profoundly disasterous consequence if it is adopted into American jurisprudence. > Kaplan has announced that the "encryption research" > exception only allows you to reverse engineer, but not > to publish the results of your work. He has so bought > into the corporate corruption of "science" -- where > research is done in secrecy, intended for business > purposes only, and the results shrouded in secrecy so > that they will benefit only the researcher's employer, > that he doesn't even understand that he has outlawed > real encryption research -- the openly published, > peer-reviewed kind. I believe that we should make explicit a facial challenge to the DMCA based on the restrictions within the two key exceptions: (f) and (g) for reverse engineering and encryption research. Incidentally, I just came across a case Foti V Menlo Park, 97-16061 (9th Cir. 1998) which states that for a regulation to be content-neutral under O'Brien, it must be content-neutral in each of it's exceptions. I'll post more on that later, but I mention it now because I want to call attention that we've mostly taken the restrictions on the exceptions for granted. The validity of the constraints deserves attention. __________________________________________________ Do You Yahoo!? Yahoo! Mail - Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 24 14:22:58 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA06521 for dvd-discuss-outgoing; Thu, 24 Aug 2000 14:22:58 -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 OAA06518 for ; Thu, 24 Aug 2000 14:22:57 -0400 Message-ID: <20000824182239.15938.qmail@web514.mail.yahoo.com> Received: from [131.44.121.4] by web514.mail.yahoo.com; Thu, 24 Aug 2000 11:22:39 PDT Date: Thu, 24 Aug 2000 11:22:39 -0700 (PDT) From: Bryan Taylor Subject: [dvd-discuss] Reexamination of Facts To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Several postings have been concerned with factual errors and assertions that have been made by Kaplan. It should be noted that 1st amendment jurisprudence requires a higher standard of factual review: HURLEY v. IRISH-AMERICAN GAY GROUP OF BOSTON No. 94-749 (Sup Ct 1995) http://caselaw.findlaw.com/scripts/getcase.pl?court=us&vol=000&invol=U10260 Even where a speech case has originally been tried in a federal court, subject to the provision of Federal Rule of Civil Procedure 52(a) that "[f]indings of fact . . . shall not be set aside unless clearly erroneous," we are obliged to make a fresh examination of crucial facts. Hence, in this case, though we are confronted with the state courts' conclusion that the factual characteristics of petitioners' activity place it within the vast realm of non-expressive conduct, our obligation is to "`make an independent examination of the whole record,' . . . so as to assure ourselves that th[is] judgment does not constitute a forbidden intrusion on the field of free expression." New York Times Co. v. Sullivan, 376 U.S. 254, 285 (1964) (footnote omitted), quoting Edwards v. South Carolina, 372 U.S. 229, 235 (1963). __________________________________________________ Do You Yahoo!? Yahoo! Mail - Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 24 14:25:29 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA06622 for dvd-discuss-outgoing; Thu, 24 Aug 2000 14:25:29 -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 OAA06618 for ; Thu, 24 Aug 2000 14:25:28 -0400 Received: from ppp.anonymizer.com (c07-148.015.popsite.net [64.24.78.148]) by cyberpass.net (8.8.8/8.7.3) with ESMTP id LAA06773; Thu, 24 Aug 2000 11:27:42 -0700 (PDT) Message-Id: <4.3.2.7.2.20000824111530.00b935f0@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, 24 Aug 2000 11:25:11 -0700 To: dvd-discuss@eon.law.harvard.edu, dvd-discuss@eon.law.harvard.edu From: "James S. Tyre" Subject: Re: [dvd-discuss] Defense outline? In-Reply-To: <20000824161240.3127.qmail@web509.mail.yahoo.com> Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii"; format=flowed Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu At 09:12 AM 8/24/2000 -0700, Bryan Taylor wrote: >Soon enough, the defense will file it's appeal to the 2nd Circuit and >we'll start work on an amicus for that appeal. A timing note and an "hmm, interesting" note. Timing: If memory serves, an amicus brief in support of an appellant must be filed within seven calendar days after appellant's brief is filed, so there is not a big gap between the two deadlines. "hmm, interesting": There is a Federal Rule of Appellate Procedure which specifies the time, and normally, I would have just looked it up online (I don't have a paper copy) to check my memory. But for at least the last hour, every single site in the uscourts.gov domain seems to be down. I started with the Second Circuit site, since there may be a relevant Circuit rule which supplements the FRAP; then tried to move across the nation to a number of other circuits, even tried to hit some district courts. Nothing. (And I've not had problems browsing anywhere else on the Net.) -------------------------------------------------------------------- James S. Tyre mailto:jstyre@jstyre.com 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 Aug 24 15:02:00 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA06880 for dvd-discuss-outgoing; Thu, 24 Aug 2000 15:02:00 -0400 Received: from mercury.clearway.com (c100.clearway.com [199.103.231.100]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA06877 for ; Thu, 24 Aug 2000 15:01:59 -0400 Received: by c100.clearway.com with Internet Mail Service (5.5.2650.21) id ; Thu, 24 Aug 2000 15:05:31 -0400 Message-ID: From: Leland Ray To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] 2600 web site Date: Thu, 24 Aug 2000 15:05:30 -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 cites in Rice v. Paladin is intriguing, it is: See also United States v. Mendelsohn , 896 F.2d 1183, 1186 (9th Cir. 1990) (holding Brandenburg inapplicable to a conviction for conspiring to transport and aiding and abetting the interstate transportation of wagering paraphernalia, where defendants disseminated a computer program that assisted others to record and analyze bets on sporting events; program was "too instrumental in and intertwined with the performance of criminal activity to retain first amendment protection"). --- Unfortunately, the decision either isn't on the web, or beyond my fledgling ability to find, but it may be helpful to us, either as a "good" or "bad" example. From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 24 15:40:14 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA07833 for dvd-discuss-outgoing; Thu, 24 Aug 2000 15:40:14 -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 PAA07830 for ; Thu, 24 Aug 2000 15:40:12 -0400 Message-ID: <20000824193955.446.qmail@web513.mail.yahoo.com> Received: from [131.44.121.4] by web513.mail.yahoo.com; Thu, 24 Aug 2000 12:39:55 PDT Date: Thu, 24 Aug 2000 12:39:55 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] Defense outline? To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --- "James S. Tyre" wrote: > >Soon enough, the defense will file it's appeal to the 2nd Circuit > >and we'll start work on an amicus for that appeal. > Timing: If memory serves, an amicus brief in support of an appellant > must be filed within seven calendar days after appellant's brief > is filed, so there is not a big gap between the two deadlines. Well, that's good to know. I seem to recall seeing a "briefing schedule" for the Eldred appeal. I hope that there are some preliminary formalities that occur first so that the defense's filing of it's brief won't come out of the blue and that we'll know when these deadlines are approaching. __________________________________________________ Do You Yahoo!? Yahoo! Mail - Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 24 15:57:56 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA07978 for dvd-discuss-outgoing; Thu, 24 Aug 2000 15:57:56 -0400 Received: from hotmail.com (f90.law9.hotmail.com [64.4.9.90]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA07975 for ; Thu, 24 Aug 2000 15:57:55 -0400 Received: from mail pickup service by hotmail.com with Microsoft SMTPSVC; Thu, 24 Aug 2000 12:57:38 -0700 Received: from 128.244.34.133 by lw9fd.law9.hotmail.msn.com with HTTP; Thu, 24 Aug 2000 GMT X-Originating-IP: [128.244.34.133] From: "Harold Eaton" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] OpenCSS - A new open standard for content protection Date: Thu, 24 Aug 2000 15:57:37 EDT Mime-Version: 1.0 Content-Type: text/plain; format=flowed Message-ID: X-OriginalArrivalTime: 24 Aug 2000 19:57:38.0032 (UTC) FILETIME=[8DA3C700:01C00E05] Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Paul Fenimore wrote: [snip] > >[ Page 33, Universal v. Reimerdes, SDNY decision opinion ] >As CSS, in the ordinary course of its operation--that is, when DeCSS or >some other decryption program is not employed--"actually works" to >prevent access to the protected work, it "effectively controls access" >within the contemplation of the statute. > > >While this isn't blatantly wrong (because the two processes are the same) >it >does leave the unwary reader with the impression that CSS is _only_ >a "technological measure", that it is not a "process" too; and that DeCSS >might implement a _different_ process even if one understands that CSS >is both "process" and "technology". CSS is a many-headed hydra. I believe that Kaplan is saying that the encryption and disc production portions of "CSS", in the absence of the decryption portion of "CSS" (when ... decryption ... is not employed) serves to deny access. But so did the box the disc came in, and the plastic surrounding that etc. etc. e.g. Kaplan could just have well written: The plastic wrapper, in the ordinary course of its operation --that is, when a knife or other cutting or tearing instrument is not employed--"actually works" to prevent access to the work, it "effectively controls access" within the contemplation of the statute. Allowing the MPAA to sell "authorized" knives. ________________________________________________________________________ Get Your Private, Free E-mail from MSN Hotmail at http://www.hotmail.com From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 24 16:00:09 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA08066 for dvd-discuss-outgoing; Thu, 24 Aug 2000 16:00:09 -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 QAA08063 for ; Thu, 24 Aug 2000 16:00:08 -0400 Message-ID: <20000824195951.27731.qmail@web510.mail.yahoo.com> Received: from [131.44.121.4] by web510.mail.yahoo.com; Thu, 24 Aug 2000 12:59:51 PDT Date: Thu, 24 Aug 2000 12:59:51 -0700 (PDT) From: Bryan Taylor Subject: [dvd-discuss] Foti v. Menlo Park To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-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 case Foti v Menlo Park probably helps us. In this case, the 9th Circuit ruled that an otherwise content-neutral test becomes content-based if any of the exceptions to it are content-based. It also found that speech restrictions that turn on shades of intent are impermissably vague and allow selective enforcement. Of course, the police do at least report up to public officials, unlike movie studios. It also adopts a very powerful interpretation of the "incidental speech" that O'Brien refers to. Basically, "purposeful speech" is different from "incidental speech", and citing O'Brien the court found that "It is well-established that the First Amendment affords the greatest protection to purposeful speech while allowing more regulation of incidental speech". I've started a little first amendment page on content_neutrality. I'm going to try to collect relevent cases and summarize their facts, holding, and analysis. The bottom link is to my summary. Foti v. Menlo Park 97-16061 (9th Cir. 1998) http://www.ce9.uscourts.gov/web/newopinions.nsf/4bc2cbe0ce5be94e88256927007a37b9/850c5f084472591c88256927007d86f1?OpenDocument&Highlight=2,Foti Summary: http://bioinformatics.ucsf.edu/bwtaylor/1st_Amendment/content_neutrality.html#Foti_v_Menlo_Park __________________________________________________ Do You Yahoo!? Yahoo! Mail - Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 24 16:03:24 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA08131 for dvd-discuss-outgoing; Thu, 24 Aug 2000 16:03:24 -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 QAA08128 for ; Thu, 24 Aug 2000 16:03:22 -0400 Received: from 216-164-136-220.s220.tnt4.lnhva.md.dialup.rcn.com ([216.164.136.220]) by smtp02.mrf.mail.rcn.net with esmtp (Exim 3.15 #2) id 13S3Dp-000269-00 for dvd-discuss@eon.law.harvard.edu; Thu, 24 Aug 2000 16:03:34 -0400 Date: Thu, 24 Aug 2000 16:03:21 EDT From: Jeremy Erwin To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] US v. Mendehlson 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 > One of the cites in Rice v. Paladin is intriguing, it is: > > See also United States v. Mendelsohn , 896 F.2d 1183, 1186 (9th Cir. > 1990) > (holding Brandenburg inapplicable to a conviction for conspiring to > transport and aiding and abetting the interstate transportation of > wagering paraphernalia, where defendants disseminated a computer program > that assisted others to record and analyze bets on sporting events; > program was "too instrumental in and intertwined with the performance > of criminal activity to retain first amendment protection"). > > --- > > Unfortunately, the decision either isn't on the web, or beyond > my fledgling ability to find, but it may be helpful to us, > either as a "good" or "bad" example. It's available through Lexis Nexis (Academic Universe). Some Excerpts: The defendants rely upon United States v. Dahlstrom, 713 F.2d 1423 (9th Cir. 1983), cert. denied 466 U.S. 980, 80 L. Ed. 2d 835, 104 S. Ct. 2363 (1984), where the defendant gave seminars instructing others how to set up tax shelters of questionable legality, but did not set up the tax shelters himself. We stated that, under those circumstances, the defendant could assert a first amendment defense. Id. at 1428. We find Dahlstrom distinguishable. Here, Mendelsohn and Bentsen did not use SOAP to instruct bookmakers in legal loopholes or [**6] to advocate gambling reform. They furnished computerized directions for functional use in an illegal activity. There was no evidence that the defendants thought Felix was going to use SOAP for anything other than illegal bookmaking. On the contrary, the defendants knew that SOAP was to be used as an integral part of a bookmaker's illegal activity, helping the bookmaker record, calculate, analyze, and quickly erase illegal bets. The question is not whether the SOAP computer program is speech, but whether it is protected speech. "Where speech becomes an integral part of the crime, a First Amendment defense is foreclosed even if the prosecution rests on words alone." United States v. Freeman, 761 F.2d at 552 (no first amendment defense when defendant helped file a false income tax return); see also United States v. Aguilar, 883 F.2d 662, 685 (9th Cir. 1989) (defendants showed alien where and how to cross border illegally); United States v. Schulman, 817 F.2d 1355 (9th Cir.), cert. denied, 483 U.S. 1042, [*1186] 97 L. Ed. 2d 803, 108 S. Ct. 362 (1987) (defendant reported false loans stemming from financing transactions); [**7] United States v. Solomon, 825 F.2d 1292 (9th Cir. 1987), cert. denied 484 U.S. 1046, 108 S. Ct. 782, 98 L. Ed. 2d 868 (1988) (defendant helped create and manage illegal tax shelters); United States v. Kelley, 864 F.2d 569 (7th Cir.) cert. denied, 493 U.S. 811, 107 L. Ed. 2d 23, 110 S. Ct. 55 (1989) (defendant sold tax shelters, participated in closings, and received commissions). Although a computer program under other circumstances might warrant first amendment protection, SOAP does not. SOAP is too instrumental in and intertwined with the performance of criminal activity to retain first amendment protection. No first amendment defense need be permitted when words are more than mere advocacy, "so close in time and purpose to a substantive evil as to become part of the crime itself." United States v. Freeman, 761 F.2d at 552. We conclude that the SOAP computer program was just such an integral and essential part of ongoing criminal activity. The district court did not err in rejecting the defendant's proposed jury instruction based on the first amendment. " US v Mendehlson also adresses theconcept of whether a computer program constitutes a "device." " 4. A Device Designed for Use in Bookmaking The district court instructed the jury that, "A computer disk encoded with a software program is a device within the meaning of 18 United States Code § 1953." [*1187] The defendants contend that this definition was erroneous, and that the district court should have given the defense instruction that a "device" includes only "an object or thing upon which information regarding one or more bets are (or are intended to be) written or otherwise recorded." Bets could be recorded on SOAP, but generally were not because the SOAP disk had little space for recording information. SOAP instructions directed the user to copy SOAP onto his computer's hard disk, and then record the bets. "Device" is not defined by statute or by case law. [**11] The defendants urge a narrow interpretation of "device" under the principle of ejusdem generis, on the theory that "device" is a general word following a list of more specific words which describe items used to record illegal bets. The defendants' argument fails because "device" follows a number of equally general, non-defined and non-specific words in § 1953, such as "paraphernalia," "paper," and "writing." Although Congress heard testimony regarding items used to record bets, such as blank lottery tickets, bookmaker's records, and flash paper, it did not limit § 1953 to those or similar items. On the contrary, Congress employed broad language to "permit law enforcement to keep pace with the latest developments . . ." because organized crime has shown "great ingenuity in avoiding the law." S.Rep. No. 589, 87th Cong., 1st Sess., p. 3. Congress intended Section 1953 to ban the interstate commerce of records of bets and accounts, "and other material utilized in a bookmaking operation." H.Rep. No. 968, 87th Cong., 1st Sess. 1961, reprinted in 1961 U.S.Code, Cong. & Admin.News 2634, 2635. The district court did not err, therefore, in instructing that a computer disk with a program [**12] was a "device," even though bets would not necessarily be recorded on it. The defendants next argue that there was insufficient evidence to convict, because the prosecution did not prove that SOAP was designed for "substantially exclusive" use in illegal bookmaking. Section 1953 broadly proscribes devices "used, or to be used, . . . or designed for use in . . . bookmaking." The defendants offer no authority for the requirement of "substantially exclusive" use or design, but contend that Congress could not have intended to ban from interstate commerce every item used in a bookmaking business, from pencils to coffeemakers. Whatever merit the defendants' argument may have with regard to such generic items as pencils, it does not encompass their computer program that was far more narrowly targeted for use in bookmaking. The few, if any, legal uses of SOAP by large bettors do not immunize SOAP's major, illegal use from the reach of § 1953. In this respect, the erasable feature of SOAP is comparable to flash paper, an instantly combustible paper that is used both by magicians to entertain and by illegal bookmakers to record bets on a medium that may quickly be destroyed in the event of [**13] a police raid. Flash paper may not be sent in interstate commerce if intended for use in illegal gambling. See United States v. Scaglione, 446 F.2d 182 (5th Cir. 1971). Neither, we conclude, may SOAP. n2 Under this construction of § 1953, it follows that there was sufficient evidence so that "any rational trier of fact could have found" that SOAP was a device used or designed to be used in illegal bookmaking. See Jackson v. Virginia, 443 U.S. 307, 319, 61 L. Ed. 2d 560, 99 S. Ct. 2781 (1979). " I hope these (rather long) excerpts have been useful. Jeremy Erwin From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 24 16:27:19 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA08397 for dvd-discuss-outgoing; Thu, 24 Aug 2000 16:27:19 -0400 Received: from mail.glenatl.glenayre.com (mail.glenatl.glenayre.com [157.230.160.51]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id QAA08394 for ; Thu, 24 Aug 2000 16:27:16 -0400 Received: from mindspring.com (mmcgown.glenatl.glenayre.com [157.230.162.136]) by mail.glenatl.glenayre.com (8.10.1/8.10.1) with ESMTP id e7OKQqX08221 for ; Thu, 24 Aug 2000 16:26:54 -0400 (EDT) Message-ID: <39A5850D.17954752@mindspring.com> Date: Thu, 24 Aug 2000 16:26:53 -0400 From: mickeym X-Mailer: Mozilla 4.61 [en] (WinNT; I) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] OpenCSS - A new open standard for content protection Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > CSS is a many-headed hydra. I believe that Kaplan is saying that > the encryption and disc production portions of "CSS", in the absence > of the decryption portion of "CSS" (when ... decryption ... is not > employed) serves to deny access. But so did the box the disc came > in, and the plastic surrounding that etc. etc. e.g. Kaplan could > just have well written: > > The plastic wrapper, in the ordinary course of its operation > --that is, when a knife or other cutting or tearing instrument > is not employed--"actually works" to prevent access to the work, > it "effectively controls access" within the contemplation of the > statute. > > Allowing the MPAA to sell "authorized" knives. > This is very similar to an analogy I have used to describe the problem in non-technical terms: Let's say I am a hot-dog vendor. I make a fine hot-dog and I am very proud of it. In fact, I consider it a work of art. I sell my "works of art" with a plastic wrapper around it. You can buy the hot-dog and take it home. However, to eat it you'll have to remove my plastic "technical measure", and to do that, you'll need additional authority. Oh, and that only comes with these special scissors that I also sell.... It's not really a problem, you might say, because you would just go to the next hot-dog stand to do business with someone else. But if all of the hot-dog vendors formed a club.... mickeym From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 24 16:28:35 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA08454 for dvd-discuss-outgoing; Thu, 24 Aug 2000 16:28:35 -0400 Received: from web124.yahoomail.com (web124.yahoomail.com [205.180.60.192]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id QAA08450 for ; Thu, 24 Aug 2000 16:28:34 -0400 Received: (qmail 16989 invoked by uid 60001); 24 Aug 2000 20:28:44 -0000 Message-ID: <20000824202844.16988.qmail@web124.yahoomail.com> Received: from [216.165.4.104] by web124.yahoomail.com; Thu, 24 Aug 2000 13:28:44 PDT Date: Thu, 24 Aug 2000 13:28:44 -0700 (PDT) From: "Tuyet A. Ngoc Tran" Subject: Re: [dvd-discuss] Defense outline? addresses To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-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: > So what is the most effective way to go about it? > Does anybody have > links to how to find your Congress-critter's > address? Are there any > best-known-methods for congressional letter writing? -- I sent the list in July but here is another copy: >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 >VA Warner, John (R) senator@warner.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 --- >Internet Caucus inetcauc@hr.house.gov __________________________________________________ Do You Yahoo!? Yahoo! Mail - Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 24 16:53:51 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA08598 for dvd-discuss-outgoing; Thu, 24 Aug 2000 16:53:51 -0400 Received: from dial72.roadrunner.com (dial72.cybermesa.com [209.12.75.72] (may be forged)) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id QAA08595 for ; Thu, 24 Aug 2000 16:53:47 -0400 Received: (from paul@localhost) by dial72.roadrunner.com (8.8.7/8.8.7) id OAA01983 for dvd-discuss@eon.law.harvard.edu; Thu, 24 Aug 2000 14:55:26 -0600 Date: Thu, 24 Aug 2000 14:55:24 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] consumer fraud Message-ID: <20000824145524.A1728@localhost> References: <20000823215039.23414.qmail@web512.mail.yahoo.com> <00082320410700.18057@frankenstein.lumbercartel.com> <20000824115303.A31598@lemuria.org> <00082406050900.24566@frankenstein.lumbercartel.com> <20000824103206.D667@localhost> <39A55386.ED5C0458@mit.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <39A55386.ED5C0458@mit.edu>; from ravi_n@mit.edu on Thu, Aug 24, 2000 at 12:55:34PM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, Aug 24, 2000 at 12:55:34PM -0400, Ravi Nanavati wrote: > Paul Fenimore wrote: > > On Thu, Aug 24, 2000 at 06:02:11AM -0700, D. C. Sessions wrote: > > > On Thu, 24 Aug 2000, Tom Vogt wrote: > > > > "D. C. Sessions" wrote: [ ... ] > > > > how can I become a criminal by accessing my own DVDs ? > > > > > > You only own the media. The IP on those DVDs belongs to the copyright > > > holders, who haven't authorized you to access it by anything other than a > > > licensed DVD player. So if you play it on a non-licensed player, you are > > > engaging in an act of copyright violation -- a criminal act. To prevent > > > this > > > horrible possibility, it's necessary that only licensed players be > > > allowed to > > > reach the public. > > > > > > But, > > > > A. 17 U.S.C. 109(c) clearly states that I have the right to make a public > > performance without the authority of the copyright owner. > > > > B. 17 U.S.C. 1201(c) says that fair use is unaffected by the provision of > > s.1201. > > > > C. Either I have the right to make public performance, or 109(c) and/or > > 1201(c) have been nullified. > > > > > You are entitled to make public performances of the MPAA's > copyrighted works using DVD CCA-licensed DVD players. Public > performance is an exclusive right of the copyright owner > (from 17 U.S.C 106) that is limited by 109(c). All that > 109(c) says is that you do not additionally require the > authority of the copyright owner for a public performance. * (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. This doesn't say anything about "additionally require ... authority". It says, "without the authority of the copyright owner." Furthermore, the language of 1201(c)(1) is very broad. It basically forbids 'side-effects' to access control that change fair use. You're suggesting there *is* a side effect? Who do I believe Mr. DA? You or the law? > It does not say (and could not say since 17 U.S.C 1201 was > enacted long after 17 U.S.C 109) The relevant question is if 1201(c)(1) was enacted simultaneously with 1201(a). Not if s.109 came before 1201(a). > that you do not require the > authority of the copyright owner to circumvent at 1201 access > control for the purpose of public performance. Yes, Kaplan found a way to read the statute that has the exercise of a statutorily guaranteed right potentially resulting in an act of circumvention. But the statute disclaims that as an outcome. I claim this indicates an error in Kaplan's interpretation, not that the plain-English meaning of 1201(c)(1) can be ignored. > This conclusion > would be nonsensical because you need the authority of the > copyright owner to circumvent a 1201 access control even for > the purpose of private performance. > You're arguing that I don't have a statutory right because there is a pre-requisite to that right. That makes the "right" not a right at all. The statute specifically disclaims any effect which would result in overturning exisiting "rights, remedies, limitations or defenses...". 1201(c)(1) says: Nothing in this section shall affect rights, remedies, limitations, or defenses to copyright infringement, including fair use, under this title. That is part of the same -Act of Congress- as 1201(a). It clearly contradicts what you've written. As far as non-sense goes, I agree, but the non-sense is not the plain-English meaning of 1201(c)(1) and 109(c), it is a twisted reading of 1201(a) that unnecessarily has 1201(c)(1) leading to "nonsense" results. Either: A. The law contradicts itself and is unconstitutionally vague, or B. As Congress intended, "access" means commerically significant access, i.e. the acquisition of the work. No more non-sense. The plain-English meaning of 1201(c)(1) and 109(c) is preserved, and 1201(a) still makes sense. The, "you have right, buy only when I consent to it," simply lacks foundation. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 24 17:20:22 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA08782 for dvd-discuss-outgoing; Thu, 24 Aug 2000 17:20:22 -0400 Received: from hotmail.com (f14.law9.hotmail.com [64.4.9.14]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA08779 for ; Thu, 24 Aug 2000 17:20:21 -0400 Received: from mail pickup service by hotmail.com with Microsoft SMTPSVC; Thu, 24 Aug 2000 14:19:59 -0700 Received: from 216.181.38.177 by lw9fd.law9.hotmail.msn.com with HTTP; Thu, 24 Aug 2000 GMT X-Originating-IP: [216.181.38.177] From: "Richard Bowers" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Defense outline? Date: Thu, 24 Aug 2000 17:19:59 EDT Mime-Version: 1.0 Content-Type: text/plain; format=flowed Message-ID: X-OriginalArrivalTime: 24 Aug 2000 21:19:59.0535 (UTC) FILETIME=[0F014BF0:01C00E11] Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu >From: Bryan Taylor >Reply-To: dvd-discuss@eon.law.harvard.edu >To: dvd-discuss@eon.law.harvard.edu >Subject: Re: [dvd-discuss] Defense outline? >Date: Thu, 24 Aug 2000 09:55:25 -0700 (PDT) > > >--- Steve Stearns wrote: > > On Thu, 24 Aug 2000, Bryan Taylor wrote: > > > > > Actually, I'm kind on in the mood to write/petition to Congress. > > > Anybody up for a letter-writing campaign? > > > > Sounds good to me. > >So what is the most effective way to go about it? Does anybody have >links to how to find your Congress-critter's address? Are there any >best-known-methods for congressional letter writing? I like: http://www.e-thepeople.com/ their site allows both open petitions and letters to targeted individuals. You can also go to the official sites: http://lcweb.loc.gov/global/legislative/congress.html - or - http://www.senate.gov/ - or - http://www.house.gov/ Richard ________________________________________________________________________ Get Your Private, Free E-mail from MSN Hotmail at http://www.hotmail.com From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 24 18:02:04 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA10100 for dvd-discuss-outgoing; Thu, 24 Aug 2000 18:02:04 -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 SAA10097 for ; Thu, 24 Aug 2000 18:02:03 -0400 Message-ID: <20000824220143.29461.qmail@web515.mail.yahoo.com> Received: from [131.44.121.4] by web515.mail.yahoo.com; Thu, 24 Aug 2000 15:01:43 PDT Date: Thu, 24 Aug 2000 15:01:43 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] US v. Mendehlson To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-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 extracted the public domain elements of the case and html-ified them: US v. Mendelsohn 896 F.2d 1183 (9th Cir. 1990) http://bioinformatics.ucsf.edu/bwtaylor/1st_Amendment/cases/US_v_Mendelsohn.html __________________________________________________ Do You Yahoo!? Yahoo! Mail - Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 24 18:32:14 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA10256 for dvd-discuss-outgoing; Thu, 24 Aug 2000 18:32:14 -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 SAA10253 for ; Thu, 24 Aug 2000 18:32:13 -0400 Received: from mediaone.net (h0060b03c5b8b.ne.mediaone.net [24.128.18.77]) by chmls05.mediaone.net (8.8.7/8.8.7) with ESMTP id SAA17166 for ; Thu, 24 Aug 2000 18:32:26 -0400 (EDT) Message-ID: <39A5A27A.EEA58A24@mediaone.net> Date: Thu, 24 Aug 2000 18:32:26 -0400 From: Sphere X-Mailer: Mozilla 4.73 [en] (WinNT; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] consumer fraud References: <20000823215039.23414.qmail@web512.mail.yahoo.com> <00082320410700.18057@frankenstein.lumbercartel.com> <20000824115303.A31598@lemuria.org> <200008241217.IAA27494@soggy-fibers.ai.mit.edu> <20000824152328.A32236@lemuria.org> <200008241626.MAA29142@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: > > Tom Vogt writes: > > > Licensed CSS players prevent a lot more than that, of course, but you > > > can count on the MPAA to stress piracy every chance they get --- just > > > look at their brief for Kaplan. > > > > it doesn't become less false because they mention it often. > > No, but it does become more convincing --- the more so if it isn't > challenged, or if the challenges seem to hinge on narrow > technicalities. > > Propaganda is also part of this fight, and theirs so far has been > pretty darn good. > > rst 20+ million Napster users might disagree with you. Sure, some of them feel a bit guilty, but not very, and I bet most of them can feel in their bones that there's somethtng rotten in Denmark. And then there's the Linux community... They know what's rotten. Our choir's larger than theirs. -- Sphere. Is DeCSS.c obscene? Why can't I read it? Can knowledge be forbidden? From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 24 18:35:41 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA10356 for dvd-discuss-outgoing; Thu, 24 Aug 2000 18:35:41 -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 SAA10353 for ; Thu, 24 Aug 2000 18:35:40 -0400 Received: from mediaone.net (h0060b03c5b8b.ne.mediaone.net [24.128.18.77]) by chmls05.mediaone.net (8.8.7/8.8.7) with ESMTP id SAA18585 for ; Thu, 24 Aug 2000 18:35:53 -0400 (EDT) Message-ID: <39A5A34A.CFF8403E@mediaone.net> Date: Thu, 24 Aug 2000 18:35:54 -0400 From: Sphere X-Mailer: Mozilla 4.73 [en] (WinNT; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] consumer fraud References: <20000824152328.A32236@lemuria.org> <20000824102811.C667@localhost> Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Paul Fenimore wrote: > > On Thu, Aug 24, 2000 at 10:05:00AM -0500, Steve Stearns wrote: > > On Thu, 24 Aug 2000, Tom Vogt wrote: > > > > > > Licensed CSS players prevent a lot more than that, of course, but you > > > > can count on the MPAA to stress piracy every chance they get --- just > > > > look at their brief for Kaplan. > > > it doesn't become less false because they mention it often. > > > > Truth is all in perception. Kaplan's siding with the prosecution and > > railing against the evil hackers every chance he got illustrates this > > rather well. > > > > > the question remains: am I a criminal because I access (and *only* access) > > > my own collection of DVDs? > > > > no. > > > > > if not, can I used decss to do so? > > > > I guess we'll find out after the appeal :) > > > > > if no, why not? > > > > Here's my thought on it. DeCSS should not be illegal for the same reason > > that a book describing how to break into computer systems should not be > > illegal. Either one simply provides instructions on how to do > > something and there is a long standing principle of not making something > > illegal based on its potential criminal use (if it has other puposes). If > > DeCSS facilitates easier piracy of DVD's (still unproven to my knowledge), > > [ ... ] > > To the extent you're talking about activities that would never qualify > as fair use (unauthorized disc pressing operations), DeCSS *adds* to the > work one must do make the illegal copies. Before running DeCSS, one has > a perfectly valid and usable disk-image. Afterwards, one needs to > re-assemble the bits of Humpty-Dumpty to make a new working disk-image. > > Unfortunately, I'm not sure that is in evidence. > > Paul Fenimore Might we be able to "sneek" it into evidence along with complaints about how we've been mishandled by the judge? (Short prep time. Cut off lines of defense followed by a judgement commenting upon exactly those areas....) -- Sphere. Is DeCSS.c obscene? Why can't I read it? Can knowledge be forbidden? From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 24 18:40:38 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA10448 for dvd-discuss-outgoing; Thu, 24 Aug 2000 18:40:38 -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 SAA10445 for ; Thu, 24 Aug 2000 18:40:38 -0400 Received: from mit.edu (h0050da62b39d.ne.mediaone.net [24.147.217.121]) by chmls05.mediaone.net (8.8.7/8.8.7) with ESMTP id SAA20710; Thu, 24 Aug 2000 18:40:50 -0400 (EDT) Message-ID: <39A5A4EF.D2699A70@mit.edu> Date: Thu, 24 Aug 2000 18:42:55 -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] US v. Mendehlson References: <20000824220143.29461.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: > > I have extracted the public domain elements of the case and html-ified > them: > > US v. Mendelsohn > 896 F.2d 1183 (9th Cir. 1990) > http://bioinformatics.ucsf.edu/bwtaylor/1st_Amendment/cases/US_v_Mendelsohn.html > Thanks for the case. It doesn't look like a good precedent for us. Lots of the DMCA (and of Kaplan's analysis) looks designed to fit in with the analysis of US v. Mendelsohn. Examples: US v. Mendelsohn: "Here Mendelsohn and Bentsen did not use SOAP to instruct bookmakers in legal loopholes or advocate gambling reform. They furnished computerized directions for functional use in illegal activity. There was no evidence that the defendants thought Felix was going to use SOAP for anything other than illegal bookmaking. On the contrary, the defendants knew that SOAP was to be used as an integral part of a bookmaker's illegal activity, helping the bookmaker record, calculate, analyze, and quickly erase illegal bets." 1201(a)(2): (A) "... primarily designed or produced for the purpose of circumventing ..." (B) "... has only limited commercially significant purpose or use other than to circumvent ..." (C) "... is marketed by that person ... for use in circumventing protection ..." Kaplan's disease reasoning seems, in this light, to be an argument that posting computer code on the Internet (or linking to code) dramatically diminishes the distance between the speech and the criminal act (circumvention by using the code on a computer with a DVDCCA/MPAA DVD), which is what makes the restrictions in 1201(a)(2) not impermissible restraints of speech. Counteraguments: 1) Kaplan's distance analysis is flawed. Source code is farther than object code. Links to DeCSS are farther than providing DeCSS directly. 2) SOAP was banned because it was object code, designed, produced, AND marketed as an illegal bookmaking device. This suggests that the tests in 1201(a)(2) are flawed. They are not stringent enough since source code designed, produced, OR marketed can run afoul of them. 3) Defendants were engaged in advocacy directly connected to their posting of DeCSS. Even Kaplan does not dispute that defendants were protesting the unjust nature of the anti-circumvention provisions as they had been interpreted. This raises the First Amendment bar for banning part of their speech since DeCSS can be considered evidence that lends weight to their advocacy. The device section of the opinion (section 4) is also troubling because it is a precedent that says that Congress can ban a class of devices (devices for illegal bookmaking). A counterargument here is that Congress has not banned descrambling devices, but conferred an unconsitutional monopoly on them, but this is weaker. - Ravi Nanavati From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 24 18:42:25 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA10493 for dvd-discuss-outgoing; Thu, 24 Aug 2000 18:42:25 -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 SAA10490 for ; Thu, 24 Aug 2000 18:42:24 -0400 Received: from mediaone.net (h0060b03c5b8b.ne.mediaone.net [24.128.18.77]) by chmls05.mediaone.net (8.8.7/8.8.7) with ESMTP id SAA21689 for ; Thu, 24 Aug 2000 18:42:37 -0400 (EDT) Message-ID: <39A5A4DD.72999BFE@mediaone.net> Date: Thu, 24 Aug 2000 18:42:37 -0400 From: Sphere X-Mailer: Mozilla 4.73 [en] (WinNT; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Defense outline? 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 Richard Bowers wrote: > > >From: Bryan Taylor > >Reply-To: dvd-discuss@eon.law.harvard.edu > >To: dvd-discuss@eon.law.harvard.edu > >Subject: Re: [dvd-discuss] Defense outline? > >Date: Thu, 24 Aug 2000 09:55:25 -0700 (PDT) > > > > > >--- Steve Stearns wrote: > > > On Thu, 24 Aug 2000, Bryan Taylor wrote: > > > > > > > Actually, I'm kind on in the mood to write/petition to Congress. > > > > Anybody up for a letter-writing campaign? > > > > > > Sounds good to me. > > > >So what is the most effective way to go about it? Does anybody have > >links to how to find your Congress-critter's address? Are there any > >best-known-methods for congressional letter writing? > > I like: > http://www.e-thepeople.com/ > > their site allows both open petitions and letters to targeted individuals. > You can also go to the official sites: > > http://lcweb.loc.gov/global/legislative/congress.html > - or - > http://www.senate.gov/ > - or - > http://www.house.gov/ > > Richard The ACLU has a rather effective "get out the letters" system in place. They haven't been very involved in this subject though. Anyone have contacts there? -- Sphere. Is DeCSS.c obscene? Why can't I read it? Can knowledge be forbidden? From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 24 18:44:57 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA10538 for dvd-discuss-outgoing; Thu, 24 Aug 2000 18:44:57 -0400 Received: from dial210.roadrunner.com (sf-du210.cybermesa.com [209.12.75.210]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id SAA10535 for ; Thu, 24 Aug 2000 18:44:54 -0400 Received: (from paul@localhost) by dial210.roadrunner.com (8.8.7/8.8.7) id QAA02402 for dvd-discuss@eon.law.harvard.edu; Thu, 24 Aug 2000 16:46:40 -0600 Date: Thu, 24 Aug 2000 16:46:39 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Defense outline? Message-ID: <20000824164639.A2311@localhost> References: <20000824165525.29848.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: <20000824165525.29848.qmail@web514.mail.yahoo.com>; from bryan_w_taylor@yahoo.com on Thu, Aug 24, 2000 at 09:55:25AM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, Aug 24, 2000 at 09:55:25AM -0700, Bryan Taylor wrote: [ ... ] > There are currently two separate proposals for protecting databases. I > suspect that one is better than the other, but I don't know which, and > I don't know if the "better" one is acceptable. Database == a collection of facts. Database regulations are an attempt lockup *ideas*. This is entirely contrary to "promote progress". It is an explicit attempt to regulate and retard the diffusion of knowledge. Retardation seems to be a favored state in some suprising groups of people, and not just in the United State Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 24 18:55:44 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA10812 for dvd-discuss-outgoing; Thu, 24 Aug 2000 18:55:44 -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 SAA10809 for ; Thu, 24 Aug 2000 18:55:43 -0400 Received: from mediaone.net (h0060b03c5b8b.ne.mediaone.net [24.128.18.77]) by chmls06.mediaone.net (8.8.7/8.8.7) with ESMTP id SAA01944 for ; Thu, 24 Aug 2000 18:55:56 -0400 (EDT) Message-ID: <39A5A7FC.9ABF2DC9@mediaone.net> Date: Thu, 24 Aug 2000 18:55:56 -0400 From: Sphere X-Mailer: Mozilla 4.73 [en] (WinNT; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Defense outline? References: <4.3.2.7.2.20000824111530.00b935f0@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 09:12 AM 8/24/2000 -0700, Bryan Taylor wrote: > > >Soon enough, the defense will file it's appeal to the 2nd Circuit and > >we'll start work on an amicus for that appeal. > > A timing note and an "hmm, interesting" note. > > Timing: If memory serves, an amicus brief in support of an appellant must > be filed within seven calendar days after appellant's brief is filed, so > there is not a big gap between the two deadlines. So... What do we have to say? (I assmune the list of factual errors should just be turned over to the defense.) -- Deletorious effects on scientific investigation. -- Unwarranted supression of free association and speech. -- The law works against original intent to further knowledge. -- Restriction of fair use. -- Permanent copyright. and? (I don't know what the _best_ arguments are...) -- Sphere. Is DeCSS.c obscene? Why can't I read it? Can knowledge be forbidden? From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 24 19:07:41 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA11635 for dvd-discuss-outgoing; Thu, 24 Aug 2000 19:07:41 -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 TAA11632 for ; Thu, 24 Aug 2000 19:07:40 -0400 Message-ID: <20000824230723.28544.qmail@web510.mail.yahoo.com> Received: from [64.81.25.36] by web510.mail.yahoo.com; Thu, 24 Aug 2000 16:07:23 PDT Date: Thu, 24 Aug 2000 16:07:23 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] Defense outline? To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --- Paul Fenimore wrote: > On Thu, Aug 24, 2000 at 09:55:25AM -0700, Bryan Taylor wrote: > [ ... ] > > There are currently two separate proposals for protecting > > databases. I suspect that one is better than the other, but > > I don't know which, and I don't know if the "better" one > > is acceptable. > > Database == a collection of facts. Depends on the database. For example, consider a database of poems. Even if it is a collection of facts, there can certainly be original expression involved in choosing *which* facts (although this changes dynamically in a real database) and how they are arranged and named. There is a huge amount of creativity and skill in a producing a data model. > Database regulations are an attempt lockup *ideas*. This is > entirely contrary to "promote progress". It is > an explicit attempt to regulate and retard the diffusion of > knowledge. Retardation seems to be a favored state in some > suprising groups of people, and not just in the United State I haven't read the bills, and they could possibly have this effect. They could also, with a suitable fair use type provision, result in a lot more databases being disseminated. There is a curios lack of populated databases for sale. Maybe something will correspond to the GPL in database protection terms. __________________________________________________ Do You Yahoo!? Yahoo! Mail - Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 24 19:38:50 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA11776 for dvd-discuss-outgoing; Thu, 24 Aug 2000 19:38:50 -0400 Received: from tneu.visi.com (tneu.visi.com [209.98.6.48]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id TAA11773 for ; Thu, 24 Aug 2000 19:38:48 -0400 Received: from tneu.visi.com (tneu.visi.com [163.228.19.198]) by tneu.visi.com (Postfix) with ESMTP id EB2F3445 for ; Thu, 24 Aug 2000 18:27:00 -0500 (CDT) Date: Thu, 24 Aug 2000 18:27:00 -0500 (CDT) From: tim To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] OpenCSS - A new open standard for content protection In-Reply-To: <39A48845.1A28D6F6@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 IMHO, there is really no reason for OpenCSS. The MPAA member companies LIKE having an illegal anti-trust regime protecting their works. It's a lot easier than having to actually prosecute copyright infringment - when you take it to court, sometimes you loose! Plus, for small time offenders, it costs more money for them to find and prosecute someone than it would be worth! Why go through all that trouble when you don't have to? Because of this, I doubt anyone would give it a second glance. Unless you can break up the tight bonds between the movie content creators, the DVD media manufacturers, the MPAA, and the DVD-CCA, you'll never get anywhere. Even if any one of these groups wanted to help the OpenCSS cause, most likely they would be prevented from doing so by the web of licensing agreements and NDAs. This scheme of theirs isn't an accident! They did their best to make sure there was no wiggle-room in their "arrangement". The MPAA has been 5 steps ahead of us througout this whole conflict - it would be a mistake not to underestimate their planning. The best copy protection is no copy protection. "copy protection" that does not allow fair use of copyrighed materials needs to stop - and DVD contend providers will never use a system that allows fair use if they can have one that doesn't. This is because the channels required to use "fair use" rights are also the channels that real pirates use. i.e. Non-macrovision analog outputs. I don't really know that anything can be done to save the DVD format - presuming we win on appeal, their DVD "TPM" will for all practical purposes cease to exist - which is better for customers than OpenCSS (IMHO) -- =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- ______ _ __ "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, 24 Aug 2000 19:45:22 -0400 Received: by c100.clearway.com with Internet Mail Service (5.5.2650.21) id ; Thu, 24 Aug 2000 19:48:55 -0400 Message-ID: From: Leland Ray To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] US v. Mendehlson Date: Thu, 24 Aug 2000 19:48:54 -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 an interesting counterpoint, and I wonder how it lines up with Junger v Daley. In Mendehlson, defense wrote a program to assist in tracking wagers on sporting events. They live in Nevada, where wagers on some sporting events are legal. They sold their software (with phone support) to an undercover federal agent in another state. They were then arrested and charged with violation of federal law: Section 1953 provides in part: "Whoever ... knowingly carries or sends in interstate ... commerce any record, paraphernalia, ticket, certificate, bills, slip, token, paper, writing, or other device used, or to be used, or adapted, devised, or designed for use in (a) bookmaking; or (b) wagering pools with respect to a sporting event; ... shall be fined ... or imprisoned...." There were two germane issues in this case. First, defense argued that the speech element of the code demanded a Brandenberg style jury instruction. The second was an overbreadth challenge to the statute itself. The argument made by the defense was that the computer code could be defended as protest speech. DeCSS is not protest speech, although in the face of legal action, linking to DeCSS has become so. In Mendehlson, the computer program is held to be "narrowly targeted for use in bookmaking." "The few, if any, legal uses ... by large bettors do not immunize [the software's] major, illegal use from the reach of Sec.1953." This is a very broad and draconian statute. The appeal in part suggested that Sec. 1953 could be used to ban anything from pencils to coffeemakers. Frankly, any determined bookie could simply write Excel macros to keep track of bets(*). In order to be successful, "the overbreadth must be substantial in comparison with the statute's legitimate sweep." Now it is the case that the language of 1953 is very different from 1201. 1953 is supposed to be read in a broad manner, the only limits are for news publications and "knowing" that the material is going to be used illegally. Because DeCSS is not in any form illegal (circumvention was not specifically illegal at the time of trial), the question becomes one of illegality of trading a device that does something legal. This places DeCSS in the same league as sex -- legal to do, illegal to trade(**). Where I think this case will become most valuable is if the case gets referred up to the Supreme Court. The SC has repeatedly said they prefer to take cases where there is disagreement between circuits, and the different ways courts have handled speech and first amendment issues might well persuade them. (*) I note that Microsoft has never gotten into any legal trouble for any of its software marketing practices. (**) Of course, devices that help you do it are perfectly legal. You just can't hire someone else to do it to yourself. Okay, I'll stop this analogy now. From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 24 20:03:00 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA12169 for dvd-discuss-outgoing; Thu, 24 Aug 2000 20:03:00 -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 UAA12166 for ; Thu, 24 Aug 2000 20:02:59 -0400 Received: from mit.edu (h0050da62b39d.ne.mediaone.net [24.147.217.121]) by chmls06.mediaone.net (8.8.7/8.8.7) with ESMTP id UAA01070; Thu, 24 Aug 2000 20:03:11 -0400 (EDT) Message-ID: <39A5B83B.B55134DC@mit.edu> Date: Thu, 24 Aug 2000 20:05:15 -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] OpenCSS - A new open standard for content protection 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 tim wrote: > > IMHO, there is really no reason for OpenCSS. > > The MPAA member companies LIKE having an illegal anti-trust regime > protecting their works. It's a lot easier than having to actually > prosecute copyright infringment - when you take it to court, sometimes you > loose! Plus, for small time offenders, it costs more money for them to > find and prosecute someone than it would be worth! Why go through all > that trouble when you don't have to? Of course the MPAA members like it, but there are lots of people who want to produce and distribute movies (even if they are "home movies") that are not members of the MPAA. The RIAA has already announced their intent in "SDMI Phase Two" to require that SDMI players NOT play unsigned (i.e. independent) content. And both the RIAA and MPAA were working with the technology industry to craft CPSA, the "content protection" architecture that will allow them as fine-grained player control as they want. The MPAA is not the movie industry, and the RIAA is not the music industry, they just want you to think they are. - Ravi Nanavati From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 24 20:11:43 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA12469 for dvd-discuss-outgoing; Thu, 24 Aug 2000 20:11:43 -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 UAA12466 for ; Thu, 24 Aug 2000 20:11:42 -0400 Received: from 216-164-132-182.s436.tnt2.lnhva.md.dialup.rcn.com ([216.164.132.182] helo=[129.174.102.85]) by smtp03.mrf.mail.rcn.net with esmtp (Exim 3.15 #2) id 13S76A-0003mH-00 for dvd-discuss@eon.law.harvard.edu; Thu, 24 Aug 2000 20:11:55 -0400 Mime-Version: 1.0 X-Sender: jerwin@osf1.gmu.edu Message-Id: In-Reply-To: <39A5A4EF.D2699A70@mit.edu> References: <20000824220143.29461.qmail@web515.mail.yahoo.com> <39A5A4EF.D2699A70@mit.edu> Date: Thu, 24 Aug 2000 20:10:12 -0400 To: dvd-discuss@eon.law.harvard.edu From: Jeremy Erwin Subject: Re: [dvd-discuss] US v. Mendelsohn Content-Type: text/plain; charset="us-ascii" ; format="flowed" Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu >Bryan Taylor wrote: > > > > I have extracted the public domain elements of the case and html-ified > > them: > > > > US v. Mendelsohn > > 896 F.2d 1183 (9th Cir. 1990) > > >http://bioinformatics.ucsf.edu/bwtaylor/1st_Amendment/cases/US_v_Mende >lsohn.html > > > >Thanks for the case. It doesn't look like a good precedent for us. >Lots of the DMCA (and of Kaplan's analysis) looks designed to fit >in with the analysis of US v. Mendelsohn. > >Examples: > >US v. Mendelsohn: > >"Here Mendelsohn and Bentsen did not use SOAP to instruct bookmakers >in legal loopholes or advocate gambling reform. They furnished >computerized directions for functional use in illegal activity. There >was no evidence that the defendants thought Felix was going to use >SOAP for anything other than illegal bookmaking. On the contrary, >the defendants knew that SOAP was to be used as an integral part of >a bookmaker's illegal activity, helping the bookmaker record, calculate, >analyze, and quickly erase illegal bets." > >1201(a)(2): >(A) "... primarily designed or produced for the purpose of circumventing ..." >(B) "... has only limited commercially significant purpose or use other than > to circumvent ..." >(C) "... is marketed by that person ... for use in circumventing >protection ..." > >Kaplan's disease reasoning seems, in this light, to be an argument that >posting computer code on the Internet (or linking to code) dramatically >diminishes the distance between the speech and the criminal act >(circumvention by using the code on a computer with a DVDCCA/MPAA DVD), >which is what makes the restrictions in 1201(a)(2) not impermissible >restraints of speech. > >Counteraguments: > >1) Kaplan's distance analysis is flawed. Source code is farther than >object code. Links to DeCSS are farther than providing DeCSS directly. > >2) SOAP was banned because it was object code, designed, produced, AND >marketed as an illegal bookmaking device. This suggests that the tests >in 1201(a)(2) are flawed. They are not stringent enough since source >code designed, produced, OR marketed can run afoul of them. > >3) Defendants were engaged in advocacy directly connected to their >posting of DeCSS. Even Kaplan does not dispute that defendants were >protesting the unjust nature of the anti-circumvention provisions as >they had been interpreted. This raises the First Amendment bar for >banning part of their speech since DeCSS can be considered evidence >that lends weight to their advocacy. > >The device section of the opinion (section 4) is also troubling >because it is a precedent that says that Congress can ban a class >of devices (devices for illegal bookmaking). A counterargument here >is that Congress has not banned descrambling devices, but conferred >an unconsitutional monopoly on them, but this is weaker. In addition, this opinion confirms/sets the precedent (at least in the ninth circuit) that computer programs can constitute devices. In Mendelsohn (and yes, I did misspell it), the defense argue that since the program required an affirmative action on the part of the would be bookie (copying to a hard disk), the disk itself did not constitute an illegal device. Now, of course, copying to a hard disk (i.e, installation) is a trivial procedure, and I doubt that this requirement would be accepted as a defence. I'm not sure how this would apply to source code, since any properly designed linux application is quite trivial to compile (./configure; make; su; make install), although the communication value of source code is higher. However, Mendlesohn's "erase the records in case of police raid" feature probably damned the program in courts. Flash paper evidently serves a similar purpose, and has been found to be illegal. On the other hand, DeCSS properly consists of two features-- copy the VOB, in decrypted form to the hard disk, and (optionally) merge these vob files together. Neither of these could be aid to serve a substantially illegal purpose, since the first could be said to serve fair use purposes, and the second arguably hinders the production of "pirate DVD"'s since the UDF file size limitation would be exceeded by a merged file. Jeremy From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 24 20:16:38 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA12583 for dvd-discuss-outgoing; Thu, 24 Aug 2000 20:16:38 -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 UAA12580 for ; Thu, 24 Aug 2000 20:16:37 -0400 Received: (from uucp@localhost) by natsemi-bh.nsc.com (8.8.8/8.6.11) id RAA22234 for ; Thu, 24 Aug 2000 17:16:49 -0700 (PDT) Received: from mailhost1.ia.nsc.com(147.5.200.40) by natsemi-bh.nsc.com via smap (4.1) id xma022092; Thu, 24 Aug 00 17:15:56 -0700 Received: from ball by ia.nsc.com (SMI-8.6/SMI-SVR4) id SAA11687; Thu, 24 Aug 2000 18:15:56 -0600 From: "John Zulauf" To: Subject: Re: [dvd-discuss] Defense outline? Date: Thu, 24 Aug 2000 18:20:23 -0600 Message-ID: <000401c00e2a$42b2c000$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: dvd-discuss(at)eon.law.harvard.edu Subject: Re: [dvd-discuss] Defense outline? ---------------------------------------------------------------------------- ---- > On Thu, Aug 24, 2000 at 09:55:25AM -0700, Bryan Taylor wrote: > [ ... ] > > There are currently two separate proposals for protecting databases. I > > suspect that one is better than the other, but I don't know which, and > > I don't know if the "better" one is acceptable. > From: Paul Fenimore > Date: Thu, 24 Aug 2000 16:46:39 -0600 > > Database == a collection of facts. Database regulations are an attempt > lockup *ideas*. This is entirely contrary to "promote progress". It is > an explicit attempt to regulate and retard the diffusion of knowledge. > Retardation seems to be a favored state in some suprising groups of people, > and not just in the United State What's interesting to me is how thoroughly backwards the plaintiffs and their interpretation of the copyright law in general and the DMCA in specific is. Their thought is that it is acceptable within the social contract of the copyright to act like owners of traditional property, and act prophyllatically to prevent unauthorized copies of their content. Copyright as I see it is not a right to increase the difficulty of making copies, but instead a recoginition that making a copy has been and will always be a unpreventable activity. Given the ease of copying, authors are given the right to prosecute the creators of unauthorized copies. This is done (per the constitution) to entice authors (in light of the understood and implied ease of copying) to publish (to make public) their creative works. This concept of publish -- to make public -- seems to have eluded the plaintiffs and the judge. The works under discussion -- DVD's -- are published works, not performed works (as in a pay-per-view system). Copyright gives redress against those who would wrongly copy a published work. But one cannot publish a work and hold it as private, proprietary content simulatenously. One cannot avail oneself of the copyright holders "rights" without accepting and respecting the other half of the bargain -- the requirement to publish -- to make public -- the work. Here's my new anti CSS et. al. slogan: No copyright protection for encrypted works! They're not published. The other element the plaintiffs and the judge have backward is the the misguided claim that copying is relatively easier today than it was when the constitution was written. The plaintiffs (and sadly some member of congress) will argue that with digital content the rules have changed. Massive copying is simpler than ever -- with a touch of a button endless pirated copies can be machine pressed or sent over the internet. What they miss is that while piracy is simpler in absolute terms -- in relative terms it remains the same as always. In 1800 a printer with a moving type press could piratically publish large quantities of a copyrighted (copywritten?) work. While this is more effort than today, it is the **same** effort as was needed by the original publisher. The pirate today can distribute in large quantity pirated content -- but only with the same tools available and with the same relative ease or difficulty as the copyright holder. Copies are (in relative terms) no easier than in prior times. Finally is the error that digital works need higher protection because of infinite reproducibility -- therefore we are justified in reducing the quality of the output and limiting the means of access. With the often discussed O(1) attack (the play button) and a video capture card (or commercial digital VCR) one can faithfully reproduce the effective, lowered quality of the Macrovision experience and duplicate it infinitely. Note that this true for both analog and digital sources.** Sure, the actual content of the disk (or tape) is never copied (in this scenario), but certainly it can be made indiscernible to the end user. Copy protection fundamentally a myth -- if the user can be made to see it, then the exact presentation to that user can be captured and duplicated. This is consistent with the assumption implied in the "progress of the useful arts..." passage. ** it isn't the present quality of the VHS video that makes it uncopiable (on another VHS tape) -- it's what VHS tapes record when presented with VHS output that looks like garbage. A nice clean digitization of a VHS tape looks just as good (or bad) as the VHS tape itself. To bad that isn't in the trial record. This of course brings us back to my initial point. Copyright is a balance founded on the unwritten assumption -- one cannot prevent copies from being made. It is for this reason that special rights must be given the otherwise helpless authors. The self-help of the DMCA's TPM provision violate that assumption. That the resulting law should be self-contradictory is unavoidable***. That the 1201 TPM provisions (as regards published works) should be held unconstitutional seems equally unavoidable. ***We might as well attempt to legislate that pi is 3.0 or 22/7 or some non-sense. Violating an underlying assumption of the constitution is asking for trouble. john zulauf private netizen From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 24 20:17:17 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA12591 for dvd-discuss-outgoing; Thu, 24 Aug 2000 20:17:17 -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 UAA12588 for ; Thu, 24 Aug 2000 20:17:15 -0400 Message-ID: <20000825001659.16439.qmail@web515.mail.yahoo.com> Received: from [64.81.25.36] by web515.mail.yahoo.com; Thu, 24 Aug 2000 17:16:59 PDT Date: Thu, 24 Aug 2000 17:16:59 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] US v. Mendehlson To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-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: > Thanks for the case. It doesn't look like a good precedent for us. > Lots of the DMCA (and of Kaplan's analysis) looks designed to fit > in with the analysis of US v. Mendelsohn. It would have been much better if they'd gone the other way :-] The weird thing about this opinion is that there is no O'Brien analysis at all. Never-the-less, I think there are several elements at play in Mendelson that were relied on that actually turn around. I think it is important to realize that even speech has limits, even under strict scrutiny. For example, if you talk with somebody and advise them on a plan to commit murder of a specific individual, you are assisting them and conspiring with them. Charles Manson is in jail for this (he did not personally kill anyone). This doesn't make self-defense classes illegal. In a case like Mendelson, the thing to do is look for the critical elements the court relied on. When the judges says "Because of A,B,C the speech is not protected", turn that around "The speech is protected unless A, B, C". > "Here Mendelsohn and Bentsen did not use SOAP to instruct bookmakers > in legal loopholes or advocate gambling reform. They furnished > computerized directions for functional use in illegal activity. There > was no evidence that the defendants thought Felix was going to use > SOAP for anything other than illegal bookmaking. On the contrary, > the defendants knew that SOAP was to be used as an integral part of > a bookmaker's illegal activity, helping the bookmaker record, > calculate, analyze, and quickly erase illegal bets." Try this here. Abstracting the implied standard: - Computer programs used for instruction or political advocacy are protected. [First Sentence - 2600's "Access to ideas" is protected] - Computerized directions with other use besides illegal activity are protected [2nd Sentence - note 1201(a)(1) not in effect] - If evidence exists that program is provided for uses besides illegal activity, speech is protected [3rd Sentence - Linux interoperability] - Lack of evidence that program is provided for illegal use indicates speech is protected. [4th Sentence - MPAA stipulation no evidence] More from the opinion: "For a first amendment instruction to meet these requirements, there must be some evidence that the defendants' speech was informational in a manner removed from immediate connection to the commission of a specific criminal act." Note the reliance on "immediate connection to ... a specific criminal act". When they gave the program to Felix, they did so with specific knowledge that he intended to use it to set up an illegal bookmaking activity. This requires knowing the recipient and knowing that they intend to break the law. I would argue 2600 doesn't meet this standard. "'Where speech becomes an integral part of the crime, a First Amendment defense is foreclosed even if the prosecution rests on words alone.' United States v. Freeman, 761 F.2d at 552 (no first amendment defense when defendant helped file a false income tax return) If 2600 knowingly assisted a specific individual to pirate DVD's using DeCSS provided by them, then this would apply. They didn't. No such individual has been identified. More: "Although a computer program under other circumstances might warrant first amendment protection, SOAP does not. SOAP is too instrumental in and intertwined with the performance of criminal activity to retain first amendment protection. No first amendment defense need be permitted when words are more than mere advocacy, 'so close in time and purpose to a substantive evil as to become part of the crime itself.' United States v. Freeman, 761 F.2d at 552. We conclude that the SOAP computer program was just such an integral and essential part of ongoing criminal activity. " Again, DeCSS is not "intertwined with the performance of criminal activity" because, for example Derek Fawcus, Frank Stevenson, and David Touretzky have all used it for legitimate purposes. There is no way to claim it is inherently "so close in time and purpose" to piracy as to become part of the act. There are admitedly thousands of postings or DeCSS, but clearly most people are not using it for piracy. __________________________________________________ Do You Yahoo!? Yahoo! Mail - Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 24 20:21:02 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA12755 for dvd-discuss-outgoing; Thu, 24 Aug 2000 20:21:02 -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 UAA12752 for ; Thu, 24 Aug 2000 20:21:00 -0400 Received: from ppp.anonymizer.com (c05-193.015.popsite.net [64.24.76.193]) by cyberpass.net (8.8.8/8.7.3) with ESMTP id RAA17739 for ; Thu, 24 Aug 2000 17:23:21 -0700 (PDT) Message-Id: <4.3.2.7.2.20000824170943.00aa4710@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, 24 Aug 2000 17:21:07 -0700 To: dvd-discuss@eon.law.harvard.edu From: "James S. Tyre" Subject: Re: [dvd-discuss] Defense outline? In-Reply-To: <20000824193955.446.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 12:39 PM 8/24/2000 -0700, Bryan Taylor wrote: >--- "James S. Tyre" wrote: > > > >Soon enough, the defense will file it's appeal to the 2nd Circuit > > >and we'll start work on an amicus for that appeal. > > > Timing: If memory serves, an amicus brief in support of an appellant > > must be filed within seven calendar days after appellant's brief > > is filed, so there is not a big gap between the two deadlines. > >Well, that's good to know. I seem to recall seeing a "briefing >schedule" for the Eldred appeal. I hope that there are some preliminary >formalities that occur first so that the defense's filing of it's brief >won't come out of the blue and that we'll know when these deadlines are >approaching. Wendy (or someone) should keep in touch with the defense on this, as sometimes the time is stipulated to, sometimes it is just that an event happens X days after a trigger, then another event according to the rules, and so on. I still have not been able to verify whether the Second Circuit has any relevant supplemental rules, but the basic rule on timing, format, length, etc. is Federal Rule of Appellate Procedure 29, which I finally was able to get (just barely) from the Ninth Circuit site. I was correct, it is seven days, the rule is here: http://www.ca9.uscourts.gov/ca9/documents.nsf/3dffd4075d235586882566c20007d3c4/19de8aac85f5fdf2882566d0006efb30?OpenDocument You'll see that FRAP 29 references other rules which you will need to be aware of, the top of the page links back to all of the FRAP. -------------------------------------------------------------------- James S. Tyre mailto:jstyre@jstyre.com 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 Aug 24 20:23:49 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA12990 for dvd-discuss-outgoing; Thu, 24 Aug 2000 20:23:49 -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 UAA12986 for ; Thu, 24 Aug 2000 20:23:48 -0400 Received: from 216-164-132-182.s436.tnt2.lnhva.md.dialup.rcn.com ([216.164.132.182] helo=[129.174.102.85]) by smtp03.mrf.mail.rcn.net with esmtp (Exim 3.15 #2) id 13S7Ht-0005Ey-00 for dvd-discuss@eon.law.harvard.edu; Thu, 24 Aug 2000 20:24:02 -0400 Mime-Version: 1.0 X-Sender: jerwin@osf1.gmu.edu Message-Id: In-Reply-To: <20000824230723.28544.qmail@web510.mail.yahoo.com> References: <20000824230723.28544.qmail@web510.mail.yahoo.com> Date: Thu, 24 Aug 2000 20:23:40 -0400 To: dvd-discuss@eon.law.harvard.edu From: Jeremy Erwin Subject: Re: [dvd-discuss] Defense outline? Content-Type: text/plain; charset="us-ascii" ; format="flowed" Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > >I haven't read the bills, and they could possibly have this effect. >They could also, with a suitable fair use type provision, result in a >lot more databases being disseminated. There is a curios lack of >populated databases for sale... > Think compendiums of governmental regulations, court decisions (Jurisline was originally developed with the help of Lexis Nexis Databases), cdrom versions of the yellow pages. etc In a word, shovelware. Jeremy From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 24 20:43:53 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA13952 for dvd-discuss-outgoing; Thu, 24 Aug 2000 20:43:53 -0400 Received: from mta5.rcsntx.swbell.net (mta5.rcsntx.swbell.net [151.164.30.29]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id UAA13949 for ; Thu, 24 Aug 2000 20:43:52 -0400 Received: from swbell.net ([64.216.208.152]) by mta5.rcsntx.swbell.net (Sun Internet Mail Server sims.3.5.2000.01.05.12.18.p9) with ESMTP id <0FZT00JLZNKOE1@mta5.rcsntx.swbell.net> for dvd-discuss@eon.law.harvard.edu; Thu, 24 Aug 2000 19:19:37 -0500 (CDT) Date: Thu, 24 Aug 2000 19:11:56 -0500 From: Jolley Subject: Re: [dvd-discuss] Errors and flaws in Kaplan's opinion To: dvd-discuss@eon.law.harvard.edu Message-id: <39A5B9CC.A4C8E95D@swbell.net> Organization: Southwestern Bell Internet Services MIME-version: 1.0 X-Mailer: Mozilla 4.72 [en]C-SBI-NC472 (Win98; U) Content-type: text/plain; charset=us-ascii Content-transfer-encoding: 7bit X-Accept-Language: en References: <39A3062C.CD924B9@swbell.net> <20000823103309.B27711@lemuria.org> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Tom Vogt wrote: > > Jolley wrote: > > On page 24. > > k>But the creation of pirated copies of copyrighted movies on writeable > > k>CD-ROMs, although significant, .... > > I wouldn't doubt this. however, it's got nothing whatsoever to do with > decss. But it has something to do with Kaplan's opinion in how much the plaintiffs have been injured. Are the cdrom pirated copies mass produced or did someone take the time to copy it onto a writeable cdrom? > I know of several cdrom pirate copies of movies. I'm fairly sure I > could get hold of at least one on short notice if required. however, all > the pirate movies I'm aware of were NOT created with DeCSS. they were > captured on camcorders in theatres, or digitized from VHS tapes or other > ways like that. > see, if you're encoding your pirate movie in 320x240 shoddy quality mpeg > (which you'll have to do to fit it on a cdrom) then why in all hell would > you want to go through all the trouble dvds create? your output quality is > pretty crappy anyways, so your input quality doesn't matter much. and > putting a digital camera in front of the tv and hitting the play button on > your vcr is much simpler than running some ripper software on a dvd, > decryting audio and video streams, reassembling them, synchronizing them > and re-encoding everything into an mpeg (or divx, whatever). as I > understand the technical process, it can be done, but there's a lot of > steps involved. It's too bad that the plaintiffs didn't submit a few of the pirated movies that they found for an independent analysis of their origin. I can't imagine it would be too difficult to determine the source of a pirated movie. Their own investigators should be able to this. I would think each pirating process would have its own fingerprint. > video piracy is real. But how real in regards to DeCSS? And how much is mass produced vs. writeable cdrom? In Kaplan's opinion, he keeps mentioning "writeable" cdrom. > > This may be a small point, but, I don't think you can say absolutely > > that digital files > > can be copied without degradation from generation to generation. Errors > > can > > and do happen when transferring digital data. > > almost every transfer has error-correction. I think it is correct to say > that digital copies are perfect. while in theory there are errors, it > doesn't really happen in practice. all your programs are digital, too. and > while a single bit error on a picture or .mp3 wouldn't be noticed, a single > bit in an executable would often lead to a crash. > > you can test that. take a text file. write a short shell script that copies > that file a million times from one partition to the next (to ensure that > actual, physical copying is being done, not just inode switching). make > sure you disable disk caching (again, to ensure that actual copying is > being performed). after the 1,000,000 copy, run diff against the original > file. I haven't tested this, but I'm fairly sure they would be identical. > I was thinking of errors that occur when transferring accross a network as the major source of trouble. I have DSL that uses DHCP. My ISP changes my IP address about every three hours. How does that affect a file transfer. My guess is that an error will occur and I will have to start over again. Another problem is that my ISP is not very reliable. It can go down at any time. I have also seen errors in file transfers due to a faulty transmission cable. There weren't many errors but it caused slow transfers due to error correction and sometimes the error correction didn't catch the error. I have also seen corrupted copies of mass produced cdroms, another digital copy, that have no visible defects. Another source of error is human and we know how hard that is to correct (especially an opinion.) From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 24 22:26:44 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA15202 for dvd-discuss-outgoing; Thu, 24 Aug 2000 22:26:44 -0400 Received: from smtp03.primenet.com (smtp03.primenet.com [206.165.6.133]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id WAA15199 for ; Thu, 24 Aug 2000 22:26:42 -0400 Received: (from daemon@localhost) by smtp03.primenet.com (8.9.3/8.9.3) id TAA24335 for ; Thu, 24 Aug 2000 19:25:50 -0700 (MST) Received: from sessions.phx.primenet.com(206.132.239.114), claiming to be "heorot.lumbercartel.com" via SMTP by smtp03.primenet.com, id smtpdAAApmaOFV; Thu Aug 24 19:25:43 2000 Received: from frankenstein.lumbercartel.com (IDENT:dcs@frankenstein.lumbercartel.com [192.168.6.2]) by heorot.lumbercartel.com (8.9.3/8.8.7) with SMTP id TAA32166 for ; Thu, 24 Aug 2000 19:26:44 -0700 From: "D. C. Sessions" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Defense outline? addresses Date: Thu, 24 Aug 2000 19:24:31 -0700 X-Mailer: KMail [version 1.0.29] Content-Type: text/plain References: <20000824202844.16988.qmail@web124.yahoomail.com> In-Reply-To: <20000824202844.16988.qmail@web124.yahoomail.com> MIME-Version: 1.0 Message-Id: <00082419252200.25692@frankenstein.lumbercartel.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, 24 Aug 2000, Tuyet A. Ngoc Tran wrote: > --- Bryan Taylor wrote: > > So what is the most effective way to go about it? > > Does anybody have > > links to how to find your Congress-critter's > > address? Are there any > > best-known-methods for congressional letter writing? hardcopy with stamp. Seriously. According to several sources, Congressional offices pretty much don't even read e-mail. > I sent the list in July but here is another copy: > > >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 > >VA Warner, John (R) senator@warner.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 > --- > >Internet Caucus inetcauc@hr.house.gov > > > > __________________________________________________ > Do You Yahoo!? > Yahoo! Mail - Free email you can access from anywhere! > http://mail.yahoo.com/ -- | Engineers solve problems -- it's what we do. | | Do you want to be a problem? | | D. C. Sessions === dcs@lumbercartel.com | From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 24 22:47:51 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA15306 for dvd-discuss-outgoing; Thu, 24 Aug 2000 22:47:51 -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 WAA15303 for ; Thu, 24 Aug 2000 22:47:50 -0400 Received: from mediaone.net (h0060b03c5b8b.ne.mediaone.net [24.128.18.77]) by chmls06.mediaone.net (8.8.7/8.8.7) with ESMTP id WAA01989 for ; Thu, 24 Aug 2000 22:48:03 -0400 (EDT) Message-ID: <39A5DE63.9AD28C3F@mediaone.net> Date: Thu, 24 Aug 2000 22:48:03 -0400 From: Sphere X-Mailer: Mozilla 4.73 [en] (WinNT; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Defense outline? addresses References: <20000824202844.16988.qmail@web124.yahoomail.com> <00082419252200.25692@frankenstein.lumbercartel.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 "D. C. Sessions" wrote: > > On Thu, 24 Aug 2000, Tuyet A. Ngoc Tran wrote: > > --- Bryan Taylor wrote: > > > So what is the most effective way to go about it? > > > Does anybody have > > > links to how to find your Congress-critter's > > > address? Are there any > > > best-known-methods for congressional letter writing? > > hardcopy with stamp. > > Seriously. According to several sources, Congressional offices pretty > much don't even read e-mail. > I think that these days they pretty much just count email, but a few years ago if I sent email and provided my address I'd at least get a form letter which would mention the right subject and respond to the side I took. Don't bother with fancy reasoning, just a simple, Dear Sen... Please repeal DMCA. sincerely... is about all you want to say in an email. Don't make life difficult for the staff member who has to do the counting. Make sure to provide your name and address -- you don't count if you're not in their district/state. (I bet they still print them out and work with paper....) -- Sphere. Is DeCSS.c obscene? Why can't I read it? Can knowledge be forbidden? From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 24 23:07:28 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA15427 for dvd-discuss-outgoing; Thu, 24 Aug 2000 23:07:28 -0400 Received: from PROXY ([202.139.53.82]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id XAA15424 for ; Thu, 24 Aug 2000 23:07:25 -0400 Received: from 192.168.200.12 by PROXY (InterScan E-Mail VirusWall NT); Fri, 25 Aug 2000 11:07:33 +0800 Received: by mits_perth_com1.mitswa.com.au with Internet Mail Service (5.5.2650.21) id ; Fri, 25 Aug 2000 11:01:06 +0800 Message-ID: <54A50136B6CAD3118FBD00C00D00DDEF037278@mits_perth_com1.mitswa.com.au> From: "McMeikan, Andrew" To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] key security Date: Fri, 25 Aug 2000 11:01:05 +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 While not disagreeing completely, the class III opponents sound pretty much like the net community (although the word funding catches a little [still what about the redhats of the world? read it with and without funding]), read it as "The net community is able to assemble..." If CSS was well protected it would have taken longer and probably more 15 year olds. Secrets do not stay secrets. I disagree that there is no money in breaking CSS, if producing a competing player without spending $10000 on a license does not save money what would? As a side question does the DMCA have any impact on removing watermarks? cya, Andrew... > -----Original Message----- > From: Arnold G. Reinhold [SMTP:reinhold@world.std.com] > Sent: Thursday, August 24, 2000 9:31 PM > To: dvd-discuss@eon.law.harvard.edu > Subject: Re: [dvd-discuss] key security > > At 10:08 AM +0800 8/24/2000, McMeikan, Andrew wrote: > >just for info http://www.cl.cam.ac.uk/users/rja14/tamper.html on keeping > >cryptographic secrets > >here is an excerpt > The authors define "class III opponents" as being: > > "... able to assemble teams of specialists with related and > complementary skills backed by great funding resources. They are > capable of in-depth analysis of the system, designing sophisticated > attacks, and using the most advanced analysis tools." > > There is no money in breaking CSS. Mass pirates simply copy the > encrypted bits. Also section 3 of the referenced paper describes > several commercial tamper-proofing techniques the authors call > "promising." Note that the paper was presented in 1996, around the > same time as the CSS design. I believe a well designed hardware > system, with enough master keys to make a recall feasible, would have > stood for many years. It certainly would not have been broken by a 15 > year old boy. > > Arnold Reinhold From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 24 23:24:31 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA15524 for dvd-discuss-outgoing; Thu, 24 Aug 2000 23:24:31 -0400 Received: from dial124.roadrunner.com (sf-du124.cybermesa.com [209.12.75.124]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id XAA15521 for ; Thu, 24 Aug 2000 23:24:28 -0400 Received: (from paul@localhost) by dial124.roadrunner.com (8.8.7/8.8.7) id VAA02763 for dvd-discuss@eon.law.harvard.edu; Thu, 24 Aug 2000 21:26:18 -0600 Date: Thu, 24 Aug 2000 21:26:17 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Defense outline? Message-ID: <20000824212616.A2468@localhost> References: <20000824230723.28544.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: <20000824230723.28544.qmail@web510.mail.yahoo.com>; from bryan_w_taylor@yahoo.com on Thu, Aug 24, 2000 at 04:07:23PM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, Aug 24, 2000 at 04:07:23PM -0700, Bryan Taylor wrote: > > --- Paul Fenimore wrote: > > On Thu, Aug 24, 2000 at 09:55:25AM -0700, Bryan Taylor wrote: > > [ ... ] > > > There are currently two separate proposals for protecting > > > databases. I suspect that one is better than the other, but > > > I don't know which, and I don't know if the "better" one > > > is acceptable. > > > > Database == a collection of facts. > > Depends on the database. For example, consider a database of poems. > > Even if it is a collection of facts, there can certainly be original > expression involved in choosing *which* facts (although this changes > dynamically in a real database) and how they are arranged and named. > There is a huge amount of creativity and skill in a producing a data > model. As far as I've thought about it, this is a non-solution to a solved problem: copyright already exists for collections. I have no delusions about the difficulty of efficiently accessing large collections of data. I've learned how to use a library and it suits me well. *And* after years of experience a good reference librarian is still much better at certain things than I am (esp. locating conference proceedings, a nightmare by any reasonable person's standard). But the point of the database bills is -not- to provide cover for clever ways of accessing and organizing data -- my reading of the bill late last year lead me to believe it would partly *remove* incentive to work on such problems because it provides a de novo monopoly for the mere aggregation of facts. The economic incentive then partly becomes to vacuum up the maximum amount of stuff. Sure, someone else can build their own database, but they can't do it by referencing someone else's database. In most circumstances they will have to go back and re-do the primary work of data collection. This is a particularly insidious point because although the proposed term of monopoly is short (I don't remember the number, my recollection is that it is less than 10 years), one can never get the whole shebang without permission of the database "owner", because that would be a violation. But, by the time the term expires, the database has been churned, and it is a "new" database. Simple scam for database "owners": never give anyone authority to copy a substantial part. Presto! Perpetual monopoly. For example, the American Physical Society has started "licensing" access to the electronic version of the society's journals. They are very explicitly thinking of the 107 years worth of articles as a database. A not-insignificant part of fundamental physical data gets published in physics journals around the world, of which APS journals are a good example. Would I be allowed to reference the articles in this database to make my own database of physical data along the lines of Landolt-Bornstein? (L.B. doesn't hold any copyrights in the articles from which they aggregate data.) I think there would be a moat full of litigator between me and a large chunk of the data. As you know, if the collection is sufficiently expressive, then it gets copyright. Last I looked (which was before February 2000) the bills would provide cover for any collection of facts, data or information. The bill contained no test of originality, i.e. it wasn't copyright. It's an attempt to legislate Fiest out of existence by pretending that Congress can create new classes of Intellectual Monopoly out of whole cloth. > > Database regulations are an attempt lockup *ideas*. This is > > entirely contrary to "promote progress". It is > > an explicit attempt to regulate and retard the diffusion of > > knowledge. Retardation seems to be a favored state in some > > surprising groups of people, and not just in the United State > > I haven't read the bills, and they could possibly have this effect. > They could also, with a suitable fair use type provision, result in a > lot more databases being disseminated. There is a curios lack of > populated databases for sale. Maybe something will correspond to the > GPL in database protection terms. My understanding was that the database business is seeing exponential growth in revenue. Perhaps I should try to dig up some numbers... Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Thu Aug 24 23:55:11 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA16167 for dvd-discuss-outgoing; Thu, 24 Aug 2000 23:55:11 -0400 Received: from mta4.rcsntx.swbell.net (mta4.rcsntx.swbell.net [151.164.30.28]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id XAA16164 for ; Thu, 24 Aug 2000 23:55:10 -0400 Received: from swbell.net ([64.216.208.152]) by mta4.rcsntx.swbell.net (Sun Internet Mail Server sims.3.5.2000.01.05.12.18.p9) with ESMTP id <0FZT0092ZX8SPG@mta4.rcsntx.swbell.net> for dvd-discuss@eon.law.harvard.edu; Thu, 24 Aug 2000 22:48:29 -0500 (CDT) Date: Thu, 24 Aug 2000 22:39:37 -0500 From: Jolley Subject: Re: [dvd-discuss] 40-bit encryption (Was Re: code as speech) To: dvd-discuss@eon.law.harvard.edu Message-id: <39A5EA79.5D9B59CF@swbell.net> Organization: Southwestern Bell Internet Services MIME-version: 1.0 X-Mailer: Mozilla 4.72 [en]C-SBI-NC472 (Win98; U) Content-type: text/plain; charset=us-ascii Content-transfer-encoding: 7bit X-Accept-Language: en References: <8nvr2p$o5p$1@blowfish.isaac.cs.berkeley.edu> <8o1dqu$ppm$1@blowfish.isaac.cs.berkeley.edu> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu And perhaps a mention of how the plaintiffs are hurting themselves by not allowing all of the Linux users, and their pent up demand, to buy and watch DVD released movies. I know I fall into that category. Right now my DVD player is just an expensive CDROM drive. "Arnold G. Reinhold" wrote: > > o The argument that HDTV will give plaintiffs a chance to revise > their technology, since the HDTV transition is mandated by law. > > Even if the appellate court doesn't fault Kaplan's fact finding on > this point, it may be important to let them know that the movie > industry won't collapse if Kaplan is overturned on first amendment > grounds. > > Arnold Reinhold From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 25 00:10:43 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA16472 for dvd-discuss-outgoing; Fri, 25 Aug 2000 00:10:43 -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 AAA16469 for ; Fri, 25 Aug 2000 00:10:42 -0400 Received: from Jana-Server (user-38ld3od.dialup.mindspring.com [209.86.143.13]) by maynard.mail.mindspring.net (8.9.3/8.8.5) with SMTP id AAA13285 for ; Fri, 25 Aug 2000 00:10:54 -0400 (EDT) Message-ID: <39A5F1FA.7B46CF51@mindspring.com> Date: Fri, 25 Aug 2000 00:11:38 -0400 From: mickeym X-Mailer: Mozilla 4.7 [en] (Win95; I) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] US v. Mendehlson Content-Type: text/plain; charset=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 don't think we could get much sway in the 'device' definition. A floppy with a program is sort of a device, I suppose. Other sections of this same law would call it an 'embodiment', though. But I wanted to point out this part, which I think has a lot to do with the 'sole purpose' aspect: >There was no evidence that the defendants thought Felix was >going to use SOAP for anything other than illegal bookmaking. >On the contrary, the defendants knew that SOAP was to be >used as an integral part of a bookmaker's illegal activity Something to point out is that, in this case, the defendant is Corley, not Johansen. So, if Kaplan used this as a guide, I believe he would not have been thinking about why the program was written, but instead about why the program was distributed. What concerns me is that he decided the sole purpose of the distribution was to circumvent, and didn't buy that story about Corley being a member of the press and other sophistry. mickeym From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 25 00:55:22 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA17296 for dvd-discuss-outgoing; Fri, 25 Aug 2000 00:55:22 -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 AAA17293 for ; Fri, 25 Aug 2000 00:55:21 -0400 Message-ID: <20000825045505.7589.qmail@web512.mail.yahoo.com> Received: from [64.81.25.36] by web512.mail.yahoo.com; Thu, 24 Aug 2000 21:55:05 PDT Date: Thu, 24 Aug 2000 21:55:05 -0700 (PDT) From: Bryan Taylor Subject: [dvd-discuss] Loper v. NYPD To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Another nice precedent from the 2nd Circuit Court of Appeals carefully analyzing O'Brien and rejecting a citywide ban on begging. This decision found the "incidental limitations" must not be a "total prohibition" on the message. It also examined exceptions, similarly to Foti v. Menlo Park, and called into question the varacity of the claim of substantial interest. It continued with an analysis of O'Brien's "no greater than essential to the furtherance" standard, finding that other narrower laws on the books could suffice. While it isn't a least restrictive means test, hopefully sacrificing most of fair use will persuade the Appeals Court that this is not a alter of good. The Court compared the comprehensive ban before it to another that contained a specific intent element that saved it from being overbroad, vague or unreasonable. There is much amunition here. _________________________ Loper v. New York City Police Dept. No. 92-9127, (2nd Cir. 1993) http://www.tourolaw.edu/2ndCircuit/Pre95/92-9127.html According to O'Brien, it is permissible to establish "incidental limitations on First Amendment freedoms" in order to protect a "sufficiently important governmental interest" that is "unrelated to the suppression of free expression." O'Brien, 391 U.S. at 376-77. Here, the total prohibition on begging in the city streets imposed by the statute cannot be characterized as a merely incidental limitation, because it serves to silence both speech and expressive conduct on the basis of the message. Carrying out the O'Brien analysis, the statute in no way advances substantial and important governmental interests. If it did, the State would not allow, as it does, the solicitation of contributions on city streets by individuals who represent charitable organizations that have registered with the Secretary of the State of New York. Assuming that the statute at issue were to be classified as an incidental restriction on free expression, O'Brien requires that the restriction be "no greater than is essential to the furtherance" of the government's interest. O'Brien, 391 U.S. at 377. According to the City Police, the interest of the government lies in preventing the fraud, intimidation, coercion, harassment and assaultive conduct that is said frequently to accompany begging by individual street solicitors who do not solicit on behalf of any organization. But, as has been demonstrated, there are a number of statutes that address this sort of conduct specifically. The statute that prohibits loitering for the purpose of begging must be considered as providing a restriction greater than is essential to further the government interests listed by the City Police, for it sweeps within its overbroad purview the expressive conduct and speech that the government should have no interest in stifling. See C.C.B. v. Florida, 458 So. 2d 47 (Fla. Dist. Ct. App. 1984). A verbal request for money for sustenance or a gesture conveying that request carries no harms of the type enumerated by the City Police, if done in a peaceful manner. In City of Seattle v. Webster, 802 P.2d 1333 (Wash. 1990) (en banc), cert. denied, 111 S. Ct. 1690 (1991), the Supreme Court of the State of Washington rejected a constitutional challenge to a Seattle ordinance that prohibited people from obstructing pedestrian or vehicular traffic or aggressively begging. See Seattle, Wash. Mun. Code § 12A.12.015(B) (1987). "Aggressively beg" was defined in the ordinance as meaning "to beg with [the] intent to intimidate another person into giving money or goods." Id. § 12A.12.015(A)(1). "Obstruct pedestrian or vehicular traffic" meant "to walk, stand, sit, lie, or place an object in such a manner as to block passage by another person or a vehicle, or to require another person or a driver of a vehicle to take evasive action to avoid physical contact." Id. § 12A.12.015(A)(3). Constitutionally protected picketing and protesting explicitly were exempted from punishment. Id. In upholding the statute, the Webster court emphasized that the specific intent element of the statute saved it from being overbroad, vague or unreasonable. We refer to Webster only because it deals with a regulation that prohibits conduct that extends beyond speech, expression and communication. In contrast with the Seattle ordinance, the statute before us prohibits verbal speech as well as communicative conduct, not in the confined precincts of the subway system, Young, supra, or in the crowded environment of a state fair, see Heffron v. International Soc'y for Krishna Consciousness, Inc., 452 U.S. 640, 651 (1981), but in the open forum of the streets of the City of New York. The New York statute does not square with the requirements of the First Amendment. The plaintiffs have demonstrated that they are entitled to the relief they seek. See Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293 n.5 (1984). __________________________________________________ Do You Yahoo!? Yahoo! Mail - Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 25 02:25:53 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id CAA18624 for dvd-discuss-outgoing; Fri, 25 Aug 2000 02:25:53 -0400 Received: from funk.iinet.net.au (funk.iinet.net.au [203.59.24.246]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id CAA18621 for ; Fri, 25 Aug 2000 02:25:47 -0400 Received: (qmail 21765 invoked from network); 25 Aug 2000 06:25:56 -0000 Received: from reggae-03-96.nv.iinet.net.au (HELO gimili) (Rk1led@203.59.78.96) by www.echidna.id.au with SMTP; 25 Aug 2000 06:25:56 -0000 Message-ID: <000701c00e5d$054c2e80$0101020a@gimili> From: "Mark Hore" To: Subject: Re: [dvd-discuss] OpenCSS - A new open standard for content protection Date: Fri, 25 Aug 2000 14:23:41 +0800 MIME-Version: 1.0 Content-Type: multipart/alternative; boundary="----=_NextPart_000_0004_01C00EA0.1188AD20" X-Priority: 3 X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook Express 4.72.3110.1 X-MimeOLE: Produced By Microsoft MimeOLE V4.72.3110.3 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu This is a multi-part message in MIME format. ------=_NextPart_000_0004_01C00EA0.1188AD20 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable "Robert S. Thau" wrote: >Ravi Nanavati writes: > > But this is the debate we want to have. The MPAA is now claiming = that > > since they used CSS to encrypt their copyrighted works we can't use > > the CSS cipher for anything else, granting an unconstitutional=20 > > process monopoly.=20 > >Is it? Consider: > > *) If the MPAA sues and wins, then their right to their player > licensing regime has been upheld. > > *) If the MPAA sues and loses, then the rights of "openCSS"=20 > copyright owners to *their* player licensing regime has been > upheld. > >So, if the argument is framed this way, then *either* outcome upholds >the rights of *some* copyright owners to license players for their >content --- which, IIRC, is the system we are arguing against. > >I'd rather have a debate which allows a more favorable outcome ...> > >rst Hmm. Maybe this idea needs to bee looked at another way. ------=_NextPart_000_0004_01C00EA0.1188AD20 Content-Type: text/html; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable 

"Robert S. Thau" wrote:
>Ravi =
Nanavati writes:

> > But this is the debate we want to have. The MPAA is now =
claiming that
> > since they used CSS to encrypt their copyrighted works we =
can't use
> > the CSS cipher for anything else, granting an unconstitutional =

> > process monopoly.=20
>
>Is it?  Consider:

>
>  *) If the MPAA sues and wins, then their =
right to their player
>     licensing regime has been upheld.
>
>  *) If the MPAA sues and loses, then the rights of =
"openCSS"=20
>     copyright owners to *their* player licensing regime has been
>     upheld.
>
>So, if the argument is framed this way, then *either* outcome =
upholds
>the rights of *some* copyright owners to license players for their
>content --- which, IIRC, is the system we are arguing against.
>
>I'd rather have a debate which allows a more favorable outcome =
...>
>
>rst
Hmm. Maybe this idea needs to bee looked at another =
way.
 
------=_NextPart_000_0004_01C00EA0.1188AD20-- From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 25 02:26:28 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id CAA18632 for dvd-discuss-outgoing; Fri, 25 Aug 2000 02:26:28 -0400 Received: from funk.iinet.net.au (funk.iinet.net.au [203.59.24.246]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id CAA18629 for ; Fri, 25 Aug 2000 02:26:24 -0400 Received: (qmail 21932 invoked from network); 25 Aug 2000 06:26:35 -0000 Received: from reggae-03-96.nv.iinet.net.au (HELO gimili) (Rk1led@203.59.78.96) by www.echidna.id.au with SMTP; 25 Aug 2000 06:26:35 -0000 Message-ID: <000801c00e5d$1c7a5320$0101020a@gimili> From: "Mark Hore" To: Subject: Re: [dvd-discuss] OpenCSS - A new open standard for content protection Date: Fri, 25 Aug 2000 14:23:41 +0800 MIME-Version: 1.0 Content-Type: multipart/alternative; boundary="----=_NextPart_000_0004_01C00EA0.1188AD20" X-Priority: 3 X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook Express 4.72.3110.1 X-MimeOLE: Produced By Microsoft MimeOLE V4.72.3110.3 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu This is a multi-part message in MIME format. ------=_NextPart_000_0004_01C00EA0.1188AD20 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable "Robert S. Thau" wrote: >Ravi Nanavati writes: > > But this is the debate we want to have. The MPAA is now claiming = that > > since they used CSS to encrypt their copyrighted works we can't use > > the CSS cipher for anything else, granting an unconstitutional=20 > > process monopoly.=20 > >Is it? Consider: > > *) If the MPAA sues and wins, then their right to their player > licensing regime has been upheld. > > *) If the MPAA sues and loses, then the rights of "openCSS"=20 > copyright owners to *their* player licensing regime has been > upheld. > >So, if the argument is framed this way, then *either* outcome upholds >the rights of *some* copyright owners to license players for their >content --- which, IIRC, is the system we are arguing against. > >I'd rather have a debate which allows a more favorable outcome ...> > >rst Hmm. Maybe this idea needs to bee looked at another way. ------=_NextPart_000_0004_01C00EA0.1188AD20 Content-Type: text/html; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable 

"Robert S. Thau" wrote:
>Ravi =
Nanavati writes:

> > But this is the debate we want to have. The MPAA is now =
claiming that
> > since they used CSS to encrypt their copyrighted works we =
can't use
> > the CSS cipher for anything else, granting an unconstitutional =

> > process monopoly.=20
>
>Is it?  Consider:

>
>  *) If the MPAA sues and wins, then their =
right to their player
>     licensing regime has been upheld.
>
>  *) If the MPAA sues and loses, then the rights of =
"openCSS"=20
>     copyright owners to *their* player licensing regime has been
>     upheld.
>
>So, if the argument is framed this way, then *either* outcome =
upholds
>the rights of *some* copyright owners to license players for their
>content --- which, IIRC, is the system we are arguing against.
>
>I'd rather have a debate which allows a more favorable outcome =
...>
>
>rst
Hmm. Maybe this idea needs to bee looked at another =
way.
 
------=_NextPart_000_0004_01C00EA0.1188AD20-- From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 25 02:46:03 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id CAA18785 for dvd-discuss-outgoing; Fri, 25 Aug 2000 02:46:03 -0400 Received: from funk.iinet.net.au (funk.iinet.net.au [203.59.24.246]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id CAA18782 for ; Fri, 25 Aug 2000 02:45:59 -0400 Received: (qmail 26102 invoked from network); 25 Aug 2000 06:46:10 -0000 Received: from reggae-03-96.nv.iinet.net.au (HELO gimili) (203.59.78.96) by www.echidna.id.au with SMTP; 25 Aug 2000 06:46:10 -0000 Message-ID: <002001c00e5f$d90158c0$0101020a@gimili> From: "BaerWulf" To: Subject: Re: [dvd-discuss] OpenCSS - A new open standard for content protection Date: Fri, 25 Aug 2000 14:43:28 +0800 MIME-Version: 1.0 Content-Type: multipart/alternative; boundary="----=_NextPart_000_0015_01C00EA2.D4B69440" X-Priority: 3 X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook Express 4.72.3110.1 X-MimeOLE: Produced By Microsoft MimeOLE V4.72.3110.3 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu This is a multi-part message in MIME format. ------=_NextPart_000_0015_01C00EA2.D4B69440 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable "Robert S. Thau" wrote: >Ravi Nanavati writes: > > But this is the debate we want to have. The MPAA is now claiming = that > > since they used CSS to encrypt their copyrighted works we can't use > > the CSS cipher for anything else, granting an unconstitutional=20 > > process monopoly.=20 > >Is it? Consider: > > *) If the MPAA sues and wins, then their right to their player > licensing regime has been upheld. > > *) If the MPAA sues and loses, then the rights of "openCSS"=20 > copyright owners to *their* player licensing regime has been > upheld. > >So, if the argument is framed this way, then *either* outcome upholds >the rights of *some* copyright owners to license players for their >content --- which, IIRC, is the system we are arguing against. > >I'd rather have a debate which allows a more favorable outcome ...> > >rst Hmm. Maybe this idea needs to bee looked at another way. If by 'chance' = an OpenCSS DVD had the same key as a DVDCCA DVD then the commercial = player could be also considered a circumvention device. If the OpenCSS = DVD copyright Holder were to sue the the commercial player manufacturer = some possible outcomes could be: *) if the commercial player wins(most likely) then the whole section = 1201 is put into considerable doubt. Victory. *) if the OpenCSS producer wins then I can see two outcomes: =20 a) The commercial player uses it's larger resources = to lobby governments to remove 1201 type laws. Victory. b) the commercial player is banned. Other = manufacturers get edgy. MPAA introduces a new TPM. We do it all again. = Player getys banned, Manufacturers get scared, MPAA introduces new TPM, = manufacturers won't touch it with a 5 meter long pointy barge pole. = Victory. IANAL, also i am an Australian. ------=_NextPart_000_0015_01C00EA2.D4B69440 Content-Type: text/html; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable
 
"Robert S. Thau" wrote:
>Ravi Nanavati =
writes:

> > But this is the debate we want to have. The MPAA is now =
claiming that
> > since they used CSS to encrypt their copyrighted works we =
can't use
> > the CSS cipher for anything else, granting an unconstitutional =

> > process monopoly.=20
>
>Is it?  Consider:
>
>  *) If the =
MPAA sues and wins, then their right to their player
>     licensing regime has been upheld.
>
>  *) If the MPAA sues and loses, then the rights of =
"openCSS"=20
>     copyright owners to *their* player licensing regime has been
>     upheld.
>
>So, if the argument is framed this way, then *either* outcome =
upholds
>the rights of *some* copyright owners to license players for their
>content --- which, IIRC, is the system we are arguing against.
>
>I'd rather have a debate which allows a more favorable outcome =
...>
>
>rst
Hmm. Maybe this idea needs to bee = looked at=20 another way. If by 'chance' an OpenCSS DVD had the same key as a DVDCCA = DVD then=20 the commercial player could be also considered a circumvention device. = If the=20 OpenCSS DVD copyright Holder were to sue the the commercial player = manufacturer=20 some possible outcomes could be:
 
*) if the commercial player wins(most likely) then = the whole=20 section 1201 is put into considerable doubt. Victory.
 
*) if the OpenCSS producer wins then I can see two=20 outcomes:
          &nbs= p;        =20
 
          &nbs= p;        =20 a) The commercial player uses it's larger resources to lobby governments = to=20 remove 1201 type laws. Victory.
 
 
          &nbs= p;        =20 b) the commercial player is banned. Other manufacturers get edgy. MPAA=20 introduces a new TPM. We do it all again. Player getys banned, = Manufacturers get=20 scared, MPAA introduces new TPM, manufacturers won't touch it with a 5 = meter=20 long pointy barge pole. Victory.
 
 
 
IANAL, also i am an = Australian.
 
 
------=_NextPart_000_0015_01C00EA2.D4B69440-- From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 25 03:16:58 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id DAA18938 for dvd-discuss-outgoing; Fri, 25 Aug 2000 03:16:58 -0400 Received: from mail.lemuria.org (lemuria.borgfelde.ricardo.de [195.244.103.65]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id DAA18935 for ; Fri, 25 Aug 2000 03:16:56 -0400 Received: from lemuria.org by mail.lemuria.org via rsmtp with bsmtp id for ; Fri, 25 Aug 2000 09:13:31 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Received: by lemuria.org via sendmail with stdio id for dvd-discuss@eon.law.harvard.edu; Fri, 25 Aug 2000 09:04:04 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Date: Fri, 25 Aug 2000 09:04:04 +0200 From: Tom Vogt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Errors and flaws in Kaplan's opinion Message-ID: <20000825090404.A2533@lemuria.org> References: <39A3062C.CD924B9@swbell.net> <20000823103309.B27711@lemuria.org> <39A5B9CC.A4C8E95D@swbell.net> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0pre3i In-Reply-To: <39A5B9CC.A4C8E95D@swbell.net> X-Privacy: If you can, please encrypt your mails - finger for key Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Jolley wrote: > It's too bad that the plaintiffs didn't submit a few of the pirated > movies that they found for an independent analysis of their origin. I > can't imagine it would be too difficult to determine the source of a > pirated movie. Their own investigators should be able to this. I would > think each pirating process would have its own fingerprint. my best guess: this is exactly why they did NOT submit a few examples into evidence. > But how real in regards to DeCSS? And how much is mass produced vs. > writeable cdrom? In Kaplan's opinion, he keeps mentioning "writeable" > cdrom. to the best of my knowledge: there's a seizable community of movie swapping on writable cdroms. it's just that the origin of these things isn't decss. I'm quite sure that the number of camcorder-in-theatre-recordings far surpasses the number of ripped-from-dvd. pirate copies. and from those, I'm sure that ripping the playback sequence dominates the "market", since it's obvious to anyone with a basic understanding of the technology involved that this is MUCH easier. the "decss way" would require lots of steps: 1.) decode to harddisk 2.) de-multiplex the various streams 3.) take one video stream, re-encode it 4.) take one audio stream, re-encode it 5.) synchronize audio and video 6.) multiplex the result and do a final encoding that's a lot of work, compared to: 1.) select language, subtitles, whatever 2.) start the dvd and ripper software > I was thinking of errors that occur when transferring accross a network > as the major source of trouble. I have DSL that uses DHCP. My ISP > changes my IP address about every three hours. How does that affect > a file transfer. My guess is that an error will occur and I will have > to start over again. Another problem is that my ISP is not very > reliable. that's a non-issue. file-transfers are almost always done using TCP, which is an error-correcting protocol. for all practical purposes, errors should be negligable. > It can go down at any time. that would interrupt the transfer, but not cause errors. > I have also seen errors in file transfers > due to a faulty transmission cable. There weren't many errors but it > caused slow transfers due to error correction and sometimes the error > correction didn't catch the error. I have also seen corrupted copies of > mass produced cdroms, another digital copy, that have no visible > defects. > Another source of error is human and we know how hard that is to correct > (especially an opinion.) I think this is the losing argument. errors are so rare and almost all protocols in use on the net today are error-correcting, that you will have a hard time convincing anyone that these put a stop to mass distribution. -- "The net treats censorship as a malfunction and re-routes around it." (John Gilmore) From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 25 03:31:55 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id DAA19074 for dvd-discuss-outgoing; Fri, 25 Aug 2000 03:31:55 -0400 Received: from web124.yahoomail.com (web124.yahoomail.com [205.180.60.192]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id DAA19071 for ; Fri, 25 Aug 2000 03:31:54 -0400 Received: (qmail 2147 invoked by uid 60001); 25 Aug 2000 07:32:08 -0000 Message-ID: <20000825073208.2146.qmail@web124.yahoomail.com> Received: from [128.122.253.144] by web124.yahoomail.com; Fri, 25 Aug 2000 00:32:08 PDT Date: Fri, 25 Aug 2000 00:32:08 -0700 (PDT) From: "Tuyet A. Ngoc Tran" Subject: Re: [dvd-discuss] Defense outline? addresses To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Legislative aides who handle Communication in congressional offices do tally the volume of e-mail on the subject at hand. As Sphere wrote, make sure they know that you're a voter in that state. It's an election time so the timing is actually favorable, believe it or not. --- Sphere wrote: > > "D. C. Sessions" wrote: > > > > hardcopy with stamp. > > > > Seriously. According to several sources, > Congressional offices pretty > > much don't even read e-mail. > > > I think that these days they pretty much > just count email, but a few years ago > if I sent email and provided my address > I'd at least get a form letter which > would mention the right subject and respond > to the side I took. > > Don't bother with fancy reasoning, just > a simple, Dear Sen... Please repeal DMCA. > sincerely... is about all you want to > say in an email. Don't make life difficult > for the staff member who has to do the > counting. Make sure to provide your > name and address -- you don't count if > you're not in their district/state. > > (I bet they still print them out and work > with paper....) > > -- > Sphere. __________________________________________________ Do You Yahoo!? Yahoo! Mail - Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 25 08:33:42 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id IAA21520 for dvd-discuss-outgoing; Fri, 25 Aug 2000 08:33:42 -0400 Received: from smtp05.primenet.com (smtp05.primenet.com [206.165.6.135]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id IAA21517 for ; Fri, 25 Aug 2000 08:33:41 -0400 Received: (from daemon@localhost) by smtp05.primenet.com (8.9.3/8.9.3) id FAA16431 for ; Fri, 25 Aug 2000 05:34:02 -0700 (MST) Received: from sessions.phx.primenet.com(206.132.239.114), claiming to be "heorot.lumbercartel.com" via SMTP by smtp05.primenet.com, id smtpdAAAOSaGdG; Fri Aug 25 05:33:57 2000 Received: from frankenstein.lumbercartel.com (IDENT:dcs@frankenstein.lumbercartel.com [192.168.6.2]) by heorot.lumbercartel.com (8.9.3/8.8.7) with SMTP id FAA00830 for ; Fri, 25 Aug 2000 05:33:14 -0700 From: "D. C. Sessions" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] US v. Mendehlson Date: Thu, 24 Aug 2000 21:29:56 -0700 X-Mailer: KMail [version 1.0.29] Content-Type: text/plain References: <39A5F1FA.7B46CF51@mindspring.com> In-Reply-To: <39A5F1FA.7B46CF51@mindspring.com> MIME-Version: 1.0 Message-Id: <00082421373000.26000@frankenstein.lumbercartel.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, 24 Aug 2000, mickeym wrote: > >There was no evidence that the defendants thought Felix was > >going to use SOAP for anything other than illegal bookmaking. > >On the contrary, the defendants knew that SOAP was to be > >used as an integral part of a bookmaker's illegal activity > > Something to point out is that, in this case, the defendant is > Corley, not Johansen. So, if Kaplan used this as a guide, I > believe he would not have been thinking about why the > program was written, but instead about why the program > was distributed. > > What concerns me is that he decided the sole purpose of the > distribution was to circumvent, and didn't buy that story about > Corley being a member of the press and other sophistry. Arguably any law which permits prior restraint of the Press based on the inferred intentions of the reporter is in serious First Amendment trouble. Would the same bits on 2600.com be somehow legal if Corley could have proven that it was his intention to cover the news? That's certainly the implication of the decision. The potential for mischief in this kind of thinking is enormous, and one suspects that that alone is enough to make the USSC unhappy. What would be a real hoot would be if some of the major press organizations were to recognize 2600 for coverage of the story. A Pulitzer might be a bit much, but the idea of a Pulitzer Prize-winning story being censored by a Federal judge because it wasn't REAL news is delicious, isn't it? -- | Engineers solve problems -- it's what we do. | | Do you want to be a problem? | | D. C. Sessions === dcs@lumbercartel.com | From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 25 09:00:50 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA21676 for dvd-discuss-outgoing; Fri, 25 Aug 2000 09:00:50 -0400 Received: from smtp04.primenet.com (smtp04.primenet.com [206.165.6.134]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id JAA21673 for ; Fri, 25 Aug 2000 09:00:46 -0400 Received: (from daemon@localhost) by smtp04.primenet.com (8.9.3/8.9.3) id FAA03899 for ; Fri, 25 Aug 2000 05:59:06 -0700 (MST) Received: from sessions.phx.primenet.com(206.132.239.114), claiming to be "heorot.lumbercartel.com" via SMTP by smtp04.primenet.com, id smtpdAAAK4a4Jh; Fri Aug 25 05:59:01 2000 Received: from frankenstein.lumbercartel.com (IDENT:dcs@frankenstein.lumbercartel.com [192.168.6.2]) by heorot.lumbercartel.com (8.9.3/8.8.7) with SMTP id GAA00963 for ; Fri, 25 Aug 2000 06:00:51 -0700 From: "D. C. Sessions" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] OpenCSS - A new open standard for content protection Date: Fri, 25 Aug 2000 05:55:56 -0700 X-Mailer: KMail [version 1.0.29] Content-Type: text/plain References: <002001c00e5f$d90158c0$0101020a@gimili> In-Reply-To: <002001c00e5f$d90158c0$0101020a@gimili> MIME-Version: 1.0 Message-Id: <00082505592900.26583@frankenstein.lumbercartel.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, 24 Aug 2000, BaerWulf wrote: > Hmm. Maybe this idea needs to bee looked at another way. If by 'chance' an OpenCSS DVD had the same key as a DVDCCA DVD then the commercial player could be also considered a circumvention device. If the OpenCSS DVD copyright Holder were to sue the the commercial player manufacturer some possible outcomes could be: No, because the commercial player doesn't meet any of the three statutory tests for a circumvention device. The only one that it even remotely *could* meet would be the "limited non-circumventing use" test, and to score on that OpenCSS would have to become overwhelmingly dominant in the market. Not something we want to bet on. -- | Engineers solve problems -- it's what we do. | | Do you want to be a problem? | | D. C. Sessions === dcs@lumbercartel.com | From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 25 09:40:09 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA21952 for dvd-discuss-outgoing; Fri, 25 Aug 2000 09:40:09 -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 JAA21949 for ; Fri, 25 Aug 2000 09:40:08 -0400 Received: from localhost (jerwin@localhost) by osf1.gmu.edu (8.8.8/8.8.8) with ESMTP id JAA04084 for ; Fri, 25 Aug 2000 09:40:23 -0400 (EDT) Date: Fri, 25 Aug 2000 09:40:23 -0400 (EDT) From: Jeremy A Erwin To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Another Favourable Article... Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu >From the Washington Post Business Section 26 Aug 2000 "Hollywood to Home Viewer: We Own You" by Rob Pegoraro http://washingtonpost.com/wp-dyn/articles/A19743-2000Aug24.html From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 25 10:37:22 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA22213 for dvd-discuss-outgoing; Fri, 25 Aug 2000 10:37:22 -0400 Received: from world.std.com (root@world-f.std.com [199.172.62.5]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id KAA22210 for ; Fri, 25 Aug 2000 10:37:21 -0400 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 KAA06909 for ; Fri, 25 Aug 2000 10:33:46 -0400 (EDT) Mime-Version: 1.0 Message-Id: In-Reply-To: <20000825045505.7589.qmail@web512.mail.yahoo.com> References: <20000825045505.7589.qmail@web512.mail.yahoo.com> Date: Fri, 25 Aug 2000 10:33:42 -0400 To: dvd-discuss@eon.law.harvard.edu From: "Arnold G. Reinhold" Subject: [dvd-discuss] Lady Chatterley's Lover? 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 9:55 PM -0700 8/24/2000, Bryan Taylor wrote: >... >Loper v. New York City Police Dept. >No. 92-9127, (2nd Cir. 1993) >http://www.tourolaw.edu/2ndCircuit/Pre95/92-9127.html > >According to O'Brien, it is permissible to establish "incidental >limitations on First Amendment freedoms" in order to protect a >"sufficiently important governmental interest" that is "unrelated to >the suppression of free expression." O'Brien, 391 U.S. at 376-77. In Judge Kaplan's application of O'Brien, the "sufficiently important governmental interest" is presumably the desire to protect the property rights of Copyright holders. But no one can argue that enforcing these rights is "unrelated to the suppression of free expression." Kaplan himself acknowledged the conflict between the Copyright clause and the First Amendment in his initial ruling. In particular, CSS region coding imposes a regime, now Congressionally protected under DCMA, that would sharply curtail the flow of information, even if legally purchased, from outside the US. It might be worth researching "right to read" cases, such as Lady Chatterley and Fanny Hill. I think the latter had to do with a US Custom's ban on importing obscene books. There is also the question of linguistic freedom. There have been decisions striking down English-only laws. Right now someone who wishes to view both English and Spanish videos needs to own two DVD players, or worse, two computers. I think that is arguably an impermissible burden. In the future if players are hard-coded by region of sale, they would not even have that option, and playing unauthorized foreign language videos will be a criminal act of circumvention. Arnold Reinhold From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 25 10:49:44 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA22513 for dvd-discuss-outgoing; Fri, 25 Aug 2000 10:49:44 -0400 Received: from dial242.roadrunner.com (dial242.cybermesa.com [209.12.75.242] (may be forged)) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id KAA22510 for ; Fri, 25 Aug 2000 10:49:40 -0400 Received: (from paul@localhost) by dial242.roadrunner.com (8.8.7/8.8.7) id IAA00729 for dvd-discuss@eon.law.harvard.edu; Fri, 25 Aug 2000 08:51:21 -0600 Date: Fri, 25 Aug 2000 08:51:20 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Database bills, was Defense outline? Message-ID: <20000825085119.A616@localhost> References: <20000824230723.28544.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: <20000824230723.28544.qmail@web510.mail.yahoo.com>; from bryan_w_taylor@yahoo.com on Thu, Aug 24, 2000 at 04:07:23PM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I was unable to locate information on any pending database bills. References to the past database bills: H.R. 2652, 105th Congress, October, 1997. HR 354, 106th Congress, 1999. HR 1858, 106th Congress, 1999. On August 4, 1998, the House passed the DMCA, with H.R. 2652 comprising Title V of the legislation. Now the Senate could no longer avoid the issue; the Collections of Information Antipiracy Act would be before the conference committee when it tried to reconcile the conflicts between the House and Senate versions of the DMCA. [ ... ] "On January 19,1999, Howard Coble, Chairman of the House Intellectual Property subcommittee, introduced H.R. 354. H.R. 354 is identical to H.R. 2652 with two exceptions. First, H.R. 354 appears to correct the problem with perpetual protection identified in H.R. 2652. Second, H.R. 354 contains a fair use provision which probably will be too narrow to permit most transformative uses. Statement of ANDREW J. PINCUS, US Patent and Trademark Office, 18 March 1999: Statement of James G. Neal, Association of Research Libraries et al., October 23, 1997: Letter from the IEEE-USA: 10/23/97 HyperLaw: Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 25 12:20:00 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA23635 for dvd-discuss-outgoing; Fri, 25 Aug 2000 12:20:00 -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 MAA23632 for ; Fri, 25 Aug 2000 12:19:58 -0400 Received: (from uucp@localhost) by natsemi-bh.nsc.com (8.8.8/8.6.11) id JAA12936 for ; Fri, 25 Aug 2000 09:20:11 -0700 (PDT) Received: from mailhost1.ia.nsc.com(147.5.200.40) by natsemi-bh.nsc.com via smap (4.1) id xma012401; Fri, 25 Aug 00 09:18:45 -0700 Received: from ball by ia.nsc.com (SMI-8.6/SMI-SVR4) id KAA21283; Fri, 25 Aug 2000 10:18:45 -0600 From: "John Zulauf" To: Subject: [dvd-discuss] Time Warner engaging in DeCSS linking Date: Fri, 25 Aug 2000 10:23:14 -0600 Message-ID: <001901c00eb0$c4dfad00$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 What's the legal impact of the following. CNN, a division of Time-Warner and one of the P's in this lawsuit at the following address: http://www.cnn.com/2000/TECH/computing/08/23/decss.part2.idg/index.html Is linking to the "Worldwide List of DeCSS Mirrors" http://www.zpok.demon.co.uk/decss/ which has directly on it's front page a DeCSS.zip download. As far as I can see it, one of the P's is doing exactly what they have asked the Judge for an injunction to stop the D from doing. How can an arguement of grave injury pass muster when the one of P's is paying it's own employees to do the self-same injurious act? IANAL. Lawyers, any comments? John Zulauf P: Judge would you restraint the D from driving burglars to houses**? J: Sure. I can make your argument for you if you want. D: But, but, but... J: Overruled. P: Thanks alot for making that quick, we've got a whole car full of burglars waiting out in the car, and you know how impatient they can get. J: Sure. No problem. D: But, but, but... J: Overruled. ** from a statement by Jack Valenti describing the provision of links as driving a burglar to a home so that they can break it to it. From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 25 12:46:55 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA23957 for dvd-discuss-outgoing; Fri, 25 Aug 2000 12:46:55 -0400 Received: from relay21.smtp.psi.net (relay21.smtp.psi.net [38.8.22.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id MAA23954 for ; Fri, 25 Aug 2000 12:46:53 -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 13SMdI-00038z-00 for dvd-discuss@eon.law.harvard.edu; Fri, 25 Aug 2000 12:47:08 -0400 From: Ron Gustavson To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Lady Chatterley's Lover? Date: Fri, 25 Aug 2000 12:40:42 -0400 Message-ID: References: <20000825045505.7589.qmail@web512.mail.yahoo.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 MAA23955 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, 25 Aug 2000 10:33:42 -0400, "Arnold G. Reinhold" wrote: >There is also the question of linguistic freedom. There have been >decisions striking down English-only laws. Right now someone who >wishes to view both English and Spanish videos needs to own two DVD >players, or worse, two computers. I think that is arguably an >impermissible burden. In the future if players are hard-coded by >region of sale, they would not even have that option, and playing >unauthorized foreign language videos will be a criminal act of >circumvention. Too many MPA discs are multi-lingual to make this case for language alone. But region codes do impose a restraint on trade between US vs. non-US films. They also reduce the value of the purchased product. Of course, as someone said, you'll never get anyone in the industry to admit there is a connection between region codes and CSS, even though there probably is. __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 25 12:46:53 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA23949 for dvd-discuss-outgoing; Fri, 25 Aug 2000 12:46:53 -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 MAA23946 for ; Fri, 25 Aug 2000 12:46:52 -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 13SMdG-00038z-00 for dvd-discuss@eon.law.harvard.edu; Fri, 25 Aug 2000 12:47:07 -0400 From: Ron Gustavson To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] OpenCSS - A new open standard for content protection Date: Fri, 25 Aug 2000 12:40:40 -0400 Message-ID: References: <002001c00e5f$d90158c0$0101020a@gimili> <00082505592900.26583@frankenstein.lumbercartel.com> In-Reply-To: <00082505592900.26583@frankenstein.lumbercartel.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 MAA23947 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, 25 Aug 2000 05:55:56 -0700, "D. C. Sessions" wrote: >No, because the commercial player doesn't meet any of the three statutory tests for a >circumvention device. The only one that it even remotely *could* meet would be the >"limited non-circumventing use" test, and to score on that OpenCSS would have to >become overwhelmingly dominant in the market. > >Not something we want to bet on. It's a moot point in that we aren't likely to get a new key on a disc (one scenario); and we don't know if an input box in an initial VTS could access CSS hardware to descramble the VOB that would contain navigation controls and "extras" (the other scenario.) It's hard to get excited about access controls. Perhaps this whole thing will blow over. "CSS is dead; long live CSS." __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 25 13:11:21 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA24409 for dvd-discuss-outgoing; Fri, 25 Aug 2000 13:11:21 -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 NAA24406 for ; Fri, 25 Aug 2000 13:11:13 -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 13SN0p-0003bC-00 for dvd-discuss@eon.law.harvard.edu; Fri, 25 Aug 2000 13:11:28 -0400 From: Ron Gustavson To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Time Warner engaging in DeCSS linking Date: Fri, 25 Aug 2000 13:05:01 -0400 Message-ID: References: <001901c00eb0$c4dfad00$87ce0593@ia.nsc.com> In-Reply-To: <001901c00eb0$c4dfad00$87ce0593@ia.nsc.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 NAA24407 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, 25 Aug 2000 10:23:14 -0600, "John Zulauf" wrote: >What's the legal impact of the following. CNN, a division of Time-Warner >and one of the P's in this lawsuit at the following address: > >http://www.cnn.com/2000/TECH/computing/08/23/decss.part2.idg/index.html > >Is linking to the "Worldwide List of DeCSS Mirrors" > | Note: Pages will open in a new browser window | External sites are not endorsed by CNN Interactive. Perhaps 2600 only needed some Javascript and a little boilerplate to avoid this whole thing? __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 25 13:36:21 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA24563 for dvd-discuss-outgoing; Fri, 25 Aug 2000 13:36:21 -0400 Received: from web55.ntx.net (web55.ntx.net [209.1.144.165]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id NAA24560 for ; Fri, 25 Aug 2000 13:36:18 -0400 Received: from cdpage.com (bdsl157.dnvr.uswest.net [209.180.249.157]) by web55.ntx.net (8.8.5/8.7.3) with ESMTP id KAA00328 for ; Fri, 25 Aug 2000 10:37:01 -0700 (PDT) Message-ID: <39A6AC82.53DB258F@cdpage.com> Date: Fri, 25 Aug 2000 11:27:30 -0600 From: Dana Parker Organization: DVD Diva X-Mailer: Mozilla 4.72 [en] (Windows NT 5.0; I) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss Subject: [dvd-discuss] [Fwd: ALERT: FCC considers restricting digital cable TV recording] Content-Type: multipart/mixed; boundary="------------6104B47E08994D21A50A8F75" 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. --------------6104B47E08994D21A50A8F75 Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit -- Dana J. Parker http://www.cdpage.com http://www.emedialive.com http://www.dvdpro.net mailto:danapark@ix.netcom.com --------------6104B47E08994D21A50A8F75 Content-Type: message/rfc822 Content-Transfer-Encoding: 7bit Content-Disposition: inline Return-Path: Received: from hrrc.org ([216.112.21.50]) by mail06.dfw.mindspring.net (Mindspring/Netcom Mail Service) with SMTP id sqd80a.aiv.33qs88a Fri, 25 Aug 2000 12:34:18 -0400 (EDT) Received: from DC-Message_Server by hrrc.org with Novell_GroupWise; Fri, 25 Aug 2000 12:00:29 -0400 Message-Id: X-Mailer: Novell GroupWise 5.2 Date: Fri, 25 Aug 2000 12:00:03 -0400 From: "Erica Hemphill" Subject: ALERT: FCC considers restricting digital cable TV recording Mime-Version: 1.0 Content-Type: text/plain; charset=ISO-8859-7 Content-Transfer-Encoding: quoted-printable Content-Disposition: inline X-Mozilla-Status2: 00000000 WHILE EVERYONE IS WATCHING NAPSTER, WHO'S WATCHING HOLLYWOOD? Again, Hollywood is trying to dictate how and when you will be able to = record TV programs from your cable system with new digital and high-definit= ion TVs. The Federal Communications Commission is considering a plan = devised by the movie studios to transmit digital signals over cable = systems only to "approved" TVs and video recorders=AFthose protected = against unauthorized home recording, which Hollywood calls "theft of = service." Protect your right to record! Visit the HRRC website at www.hrrc.org to = find out more, and send a message to the FCC today! Remind Washington and = Hollywood that home recording is not "theft." And please feel free to post this alert to your favorite newsgroups, or = email it to your family and friends. =20 --------------6104B47E08994D21A50A8F75-- From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 25 13:42:00 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA24683 for dvd-discuss-outgoing; Fri, 25 Aug 2000 13:42:00 -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 NAA24680 for ; Fri, 25 Aug 2000 13:41:58 -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 13SNUb-0004Ba-00 for dvd-discuss@eon.law.harvard.edu; Fri, 25 Aug 2000 13:42:13 -0400 From: Ron Gustavson To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] (fwd) ALERT: FCC considers restricting digital cable TV recording Date: Fri, 25 Aug 2000 13:35:47 -0400 Message-ID: X-Mailer: Forte Agent 1.8/32.548 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 NAA24681 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Comments to FCC requested... http://www.hrrc.org/html/what_s_new_at_the_fcc.html WHILE EVERYONE IS WATCHING NAPSTER, WHO'S WATCHING HOLLYWOOD? Again, Hollywood is trying to dictate how and when you will be able to record TV programs from your cable system with new digital and high-definition TVs. The Federal Communications Commission is considering a plan devised by the movie studios to transmit digital signals over cable systems only to "approved" TVs and video recorders¯those protected against unauthorized home recording, which Hollywood calls "theft of service." Protect your right to record! Visit the HRRC website at www.hrrc.org to find out more, and send a message to the FCC today! Remind Washington and Hollywood that home recording is not "theft." And please feel free to post this alert to your favorite newsgroups, or email it to your family and friends. __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 25 13:48:16 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA24747 for dvd-discuss-outgoing; Fri, 25 Aug 2000 13:48:16 -0400 Received: from dial132.roadrunner.com (sf-du132.cybermesa.com [209.12.75.132]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id NAA24744 for ; Fri, 25 Aug 2000 13:48:13 -0400 Received: (from paul@localhost) by dial132.roadrunner.com (8.8.7/8.8.7) id LAA01474 for dvd-discuss@eon.law.harvard.edu; Fri, 25 Aug 2000 11:49:54 -0600 Date: Fri, 25 Aug 2000 11:49:53 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] FCC considers restricting digital cable TV recording Message-ID: <20000825114952.C992@localhost> References: <39A6AC82.53DB258F@cdpage.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <39A6AC82.53DB258F@cdpage.com>; from danapark@cdpage.com on Fri, Aug 25, 2000 at 11:27:30AM -0600 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Thanks for the heads up. On Fri, Aug 25, 2000 at 11:27:30AM -0600, Dana Parker wrote: > WHILE EVERYONE IS WATCHING NAPSTER, > WHO'S WATCHING HOLLYWOOD? The Federal Communication Commission (FCC) soon will be deciding whether VCRs can be hooked up to digital cable systems, and whether home recording from digital cable will be allowed. In the same proceeding, they will also decide whether cable systems will be allowed to deliver high-definition digital signals compatible with the DTV receivers consumers are now purchasing. The HRRC and others have challenged an industry-wide license that contains provisions, drafted by movie companies, that would allow cable operators to prevent VCR hookup, prevent home recording, and not provide HDTV signals to the types of DTV receivers now available to consumers. Manufacturers of VCRs, DTV receivers, and PCs would have to sign such a license to connect their products to digital cable systems. Cable systems and movie companies argue that such a license falls within FCC regulations that allow cable operators to guard against theft of service. IF YOU DO NOT BELIEVE THAT HOME RECORDING FROM CABLE IS THEFT OF SERVICE, YOU MUST LET THE FCC KNOW IMMEDIATELY. Here is what you can do: [ ... ] From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 25 13:59:31 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA24857 for dvd-discuss-outgoing; Fri, 25 Aug 2000 13:59:31 -0400 Received: from dial132.roadrunner.com (sf-du132.cybermesa.com [209.12.75.132]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id NAA24854 for ; Fri, 25 Aug 2000 13:59:28 -0400 Received: (from paul@localhost) by dial132.roadrunner.com (8.8.7/8.8.7) id MAA01554 for dvd-discuss@eon.law.harvard.edu; Fri, 25 Aug 2000 12:01:14 -0600 Date: Fri, 25 Aug 2000 12:01:13 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Database: H.R.1858, legislative status Message-ID: <20000825120112.D992@localhost> References: <20000824230723.28544.qmail@web510.mail.yahoo.com> <20000825085119.A616@localhost> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <20000825085119.A616@localhost>; from fenimore@roadrunner.com on Fri, Aug 25, 2000 at 08:51:20AM -0600 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu H.R.1858 Sponsor: Rep Bliley, Tom (introduced 5/19/1999) Latest Major Action: 10/8/1999 House preparation for floor Title: To promote electronic commerce through improved access for consumers to electronic databases, including securities market information databases. _________________________________________________________________ STATUS: (color indicates Senate actions) (Floor Actions/Congressional Record Page References) 5/19/1999: Referred to the House Committee on Commerce. 6/8/1999: Referred to the Subcommittee on Telecommunications, Trade, and Consumer Protection. 6/15/1999: Subcommittee Hearings Held. 7/29/1999: Subcommittee Consideration and Mark-up Session Held. 7/29/1999: Forwarded by Subcommittee to Full Committee (Amended) by Voice Vote. 6/8/1999: Referred to the Subcommittee on Finance and Hazardous Materials. 6/30/1999: Subcommittee Hearings Held. 7/21/1999: Subcommittee Consideration and Mark-up Session Held. 7/21/1999: Forwarded by Subcommittee to Full Committee (Amended) by Voice Vote. 8/5/1999: Committee Consideration and Mark-up Session Held. 8/5/1999: Ordered to be Reported in the Nature of a Substitute by Voice Vote. 8/5/1999 9:42pm: Ms. Pryce (OH) asked unanimous consent that the Committee on Commerce have until midnight on Sept. 7 to file a report on H.R. 1858. Agreed to without objection. 9/30/1999 2:06pm: Reported (Amended) by the Committee on Commerce. H. Rept. 106-350, Part I. 9/30/1999: Referred sequentially to the House Committee on the Judiciary for a period ending not later than Oct. 8, 1999 for consideration of such provisions of the bill and amendment as fall within the jurisdiction of that committee pursuant to clause 1(k), rule X. 10/8/1999 12:09pm: Committee on Judiciary discharged. 10/8/1999 12:09pm: Placed on the Union Calendar, Calendar No. 213. From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 25 14:05:24 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA24971 for dvd-discuss-outgoing; Fri, 25 Aug 2000 14:05:24 -0400 Received: from dial132.roadrunner.com (sf-du132.cybermesa.com [209.12.75.132]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id OAA24968 for ; Fri, 25 Aug 2000 14:05:20 -0400 Received: (from paul@localhost) by dial132.roadrunner.com (8.8.7/8.8.7) id MAA01601 for dvd-discuss@eon.law.harvard.edu; Fri, 25 Aug 2000 12:07:06 -0600 Date: Fri, 25 Aug 2000 12:07:05 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Database: HR 354, legislative action Message-ID: <20000825120705.E992@localhost> References: <20000824230723.28544.qmail@web510.mail.yahoo.com> <20000825085119.A616@localhost> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <20000825085119.A616@localhost>; from fenimore@roadrunner.com on Fri, Aug 25, 2000 at 08:51:20AM -0600 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu H.R.354 Sponsor: Rep Coble, Howard (introduced 1/19/1999) Latest Major Action: 10/8/1999 House preparation for floor Title: To amend title 17, United States Code, to provide protection for certain collections of information. _________________________________________________________________ STATUS: (color indicates Senate actions) (Floor Actions/Congressional Record Page References) 1/19/1999: Referred to the House Committee on the Judiciary. 2/25/1999: Referred to the Subcommittee on Courts and Intellectual Property. 3/18/1999: Subcommittee Hearings Held. 5/20/1999: Subcommittee Consideration and Mark-up Session Held. 5/20/1999: Forwarded by Subcommittee to Full Committee (Amended) by Voice Vote. 5/26/1999: Committee Consideration and Mark-up Session Held. 5/26/1999: Ordered to be Reported (Amended) by Voice Vote. 9/30/1999 2:03pm: Reported (Amended) by the Committee on Judiciary. H. Rept. 106-349, Part I. 9/30/1999: Referred sequentially to the House Committee on Commerce for a period ending not later than Oct. 8, 1999 for consideration of such provisions of the bill and amendment as fall within the jurisdiction of that committee pursuant to clause 1(f), rule X. 10/8/1999 12:09pm: Committee on Commerce discharged. 10/8/1999 12:09pm: Placed on the Union Calendar, Calendar No. 212. From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 25 14:48:36 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA25682 for dvd-discuss-outgoing; Fri, 25 Aug 2000 14:48:36 -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 OAA25679 for ; Fri, 25 Aug 2000 14:48:35 -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 13SOX0-0005ah-00 for dvd-discuss@eon.law.harvard.edu; Fri, 25 Aug 2000 14:48:46 -0400 From: Ron Gustavson To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] watermarking article Date: Fri, 25 Aug 2000 14:42:20 -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 OAA25680 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu http://www.wired.com/news/technology/0,1282,38279,00.html This is relevant to our OpenCSS speculation... Watermarking for downloadable home videos might present a better opportunity for open source development than an access control. While Sillywood will still control the player market, independent film makers might want to assign their own rules to even raw video assets--kind of like the artist's signature. An author-applied watermark could do this, which film studios and distributors would be precluded (by DMCA) from removing or altering. __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 25 14:50:53 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA25938 for dvd-discuss-outgoing; Fri, 25 Aug 2000 14:50:53 -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 OAA25933 for ; Fri, 25 Aug 2000 14:50:46 -0400 Received: from localhost (localhost [[UNIX: localhost]]) by rjmconsulting.com (8.9.3/8.9.3) id MAA24510 for dvd-discuss@eon.law.harvard.edu; Fri, 25 Aug 2000 12:00:40 -0700 From: Russell (James) Miller To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] ok... Date: Fri, 25 Aug 2000 11:54:54 -0700 X-Mailer: KMail [version 1.0.29.2] Content-Type: text/plain MIME-Version: 1.0 Message-Id: <00082512003901.24844@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've been on this list ever since its inception - and I've been following the conversations on this list with a varying and ever-growing degree of frustration, discouragement, and anger. I think we're doing a good thing on this list, but I really have to say that I doubt how much good it's doing. I've been watching arguments and counterarguments and the picture that's emerging is starting to discourage me, and I'm half tempted just to give up on the whole thing and move to some remote, sparsely populated island in the south pacific or something. Honestly, I'd like to hear from the lawyers on the list and hopefully even the defense team, Ed, Martin, etc... - I have one simple question that doesn't require a whole lot: Do we even have a chance? Or are we wasting our breath and watching our so-called constitutional rights go down the tubes? Are we going to have to just roll over and let the Kaplans and Valentis of the world take control of everything we hold dear? --james (Russell) -- Russell (James) 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 Aug 25 15:01:57 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA26077 for dvd-discuss-outgoing; Fri, 25 Aug 2000 15:01:57 -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 PAA26074 for ; Fri, 25 Aug 2000 15:01:56 -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 PAA26325 for ; Fri, 25 Aug 2000 15:02:12 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id PAA08242; Fri, 25 Aug 2000 15:02:11 -0400 (EDT) Date: Fri, 25 Aug 2000 15:02:11 -0400 (EDT) Message-Id: <200008251902.PAA08242@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] watermarking article In-Reply-To: References: Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Ron Gustavson writes: > Watermarking for downloadable home videos might present a > better opportunity for open source development than an access > control. While Sillywood will still control the player market, independent > film makers might want to assign their own rules to even raw video > assets--kind of like the artist's signature. An author-applied watermark > could do this, which film studios and distributors would be precluded > (by DMCA) from removing or altering. I take it that this prohibition would stem from 1202 (copyright management information), and not 1201 --- one of the few sane things in 1201 is 1201(c)(3) which states that it is *not* a violation of the DMCA to produce a mechanism which simply ignores, say, a watermark: Nothing in this section shall require 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 measure, so long as such part or component, or the product in which such part or component is integrated, does not otherwise fall within the prohibitions of subsection (a)(2) or (b)(1). (This is why they need to bundle their use controls with "access control" based on scrambling; if not, they would obviously have no statutory support). rst From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 25 15:14:24 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA26279 for dvd-discuss-outgoing; Fri, 25 Aug 2000 15:14:24 -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 PAA26276 for ; Fri, 25 Aug 2000 15:14:23 -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 13SOvy-00066u-00 for dvd-discuss@eon.law.harvard.edu; Fri, 25 Aug 2000 15:14:34 -0400 From: Ron Gustavson To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] ok... Date: Fri, 25 Aug 2000 15:08:08 -0400 Message-ID: <30gdqsocich4lf6vvf1b7p6jimtetrtoj1@4ax.com> References: <00082512003901.24844@www.rjmconsulting.com> In-Reply-To: <00082512003901.24844@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 PAA26277 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, 25 Aug 2000 11:54:54 -0700, Russell (James) Miller wrote: >I've been on this list ever since its inception - and I've been following the >conversations on this list with a varying and ever-growing degree of >frustration, discouragement, and anger. I think we're doing a good thing on >this list, but I really have to say that I doubt how much good it's doing. This is the lull after the hurricane. The survivors are picking through the wreckage trying to convince themselves that this busted-up table isn't _that_ bad and with a little packing tape... >I've been watching arguments and counterarguments and the picture that's >emerging is starting to discourage me, and I'm half tempted just to give up on >the whole thing and move to some remote, sparsely populated island in the south >pacific or something. > >Honestly, I'd like to hear from the lawyers on the list and hopefully even the >defense team, Ed, Martin, etc... - I have one simple question that doesn't >require a whole lot: It's August. Time for the cape, the vineyard, the island. Even the newspapers are thinner. >Do we even have a chance? Or are we wasting our breath and watching our >so-called constitutional rights go down the tubes? Are we going to have to >just roll over and let the Kaplans and Valentis of the world take control of >everything we hold dear? The funny part is that they are so doomed as to try to remake the entire cosmos in their own image. They are like medieval monks who outlived their time and had to swallow the Rennaisance. (I'm sure there were a lot of counsels with the pope; many decrees; a few blasphemers got burned at the stake. But--voila!-- Leonardo, Michaelangelo...) Campaign finance reform would help put a ding in the darkness--not for another few years, I guess. The keys to what we want are in the technology. But we have to use it proactively, rather than reactively. MP3 was one such revolution. DiVX may be another. The best news is that the world is in flux. Even Valenti knows that! __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 25 15:33:34 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA27404 for dvd-discuss-outgoing; Fri, 25 Aug 2000 15:33:34 -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 PAA27401 for ; Fri, 25 Aug 2000 15:33:32 -0400 Received: from localhost (localhost [[UNIX: localhost]]) by rjmconsulting.com (8.9.3/8.9.3) id MAA05728 for dvd-discuss@eon.law.harvard.edu; Fri, 25 Aug 2000 12:43:26 -0700 From: Russell (James) Miller To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] watermarking article Date: Fri, 25 Aug 2000 12:42:39 -0700 X-Mailer: KMail [version 1.0.29.2] Content-Type: text/plain References: In-Reply-To: MIME-Version: 1.0 Message-Id: <00082512432402.24844@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 They bought the law, surely they're immune from its enforcement. Even though I'm being sarcastic, I'm afraid that's actually the state of affairs. Try to sue them for violation of the DMCA and watch where it goes. --james (Russell) On Fri, 25 Aug 2000, you wrote: > http://www.wired.com/news/technology/0,1282,38279,00.html > > This is relevant to our OpenCSS speculation... > > > > Watermarking for downloadable home videos might present a > better opportunity for open source development than an access > control. While Sillywood will still control the player market, independent > film makers might want to assign their own rules to even raw video > assets--kind of like the artist's signature. An author-applied watermark > could do this, which film studios and distributors would be precluded > (by DMCA) from removing or altering. > > > __________no-∞-do__________ -- Russell (James) 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 Aug 25 15:42:26 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA27556 for dvd-discuss-outgoing; Fri, 25 Aug 2000 15:42:26 -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 PAA27553 for ; Fri, 25 Aug 2000 15:42:25 -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 13SPNA-0006fY-00 for dvd-discuss@eon.law.harvard.edu; Fri, 25 Aug 2000 15:42:40 -0400 From: Ron Gustavson To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] watermarking article Date: Fri, 25 Aug 2000 15:36:14 -0400 Message-ID: References: <200008251902.PAA08242@soggy-fibers.ai.mit.edu> In-Reply-To: <200008251902.PAA08242@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 PAA27554 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, 25 Aug 2000 15:02:11 -0400 (EDT), "Robert S. Thau" wrote: >I take it that this prohibition would stem from 1202 (copyright >management information), and not 1201 --- one of the few sane things >in 1201 is 1201(c)(3) which states that it is *not* a violation of the >DMCA to produce a mechanism which simply ignores, say, a watermark: 1202(b)(2) looks pretty strong as to screwing around with an author's watermark. This element could assist directors and composers in making their contracts. (One needed area is in the re-editing of music that is taking place at radio stations and local markets--and not by the artists.) Film directors could produce a director's cut that would be safe from ratings-happy studio execs. Of course many will take the money and cave in... But a digital signature adds value to their negotiating position. One way to beat this law might be to divide and conquer. Get the original artists to consider what _they_ might have gained with DMCA. __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 25 15:43:30 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA27593 for dvd-discuss-outgoing; Fri, 25 Aug 2000 15:43:30 -0400 Received: from mail2.panix.com (mail2.panix.com [166.84.0.213]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA27590 for ; Fri, 25 Aug 2000 15:43:29 -0400 Received: from panix.com (www1.panix.com [166.84.0.209]) by mail2.panix.com (Postfix) with SMTP id 5E2D98ECD for ; Fri, 25 Aug 2000 15:43:44 -0400 (EDT) From: "Roy Murphy" To: dvd-discuss@eon.law.harvard.edu Date: Fri, 25 Aug 2000 15:43:44 -0400 Subject: Re: [dvd-discuss] ok... X-Mailer: DMailWeb Web to Mail Gateway 2.6k, http://netwinsite.com/top_mail.htm Message-id: <39a6cc70.1ec3.0@panix.com> MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu >I've been on this list ever since its inception - and I've been >following the conversations on this list with a varying and ever- >growing degree of frustration, discouragement, and anger. I think >we're doing a good thing on this list, but I really have to say that I >doubt how much good it's doing. > >I've been watching arguments and counterarguments and the picture >that's emerging is starting to discourage me, and I'm half tempted >just to give up on the whole thing and move to some remote, sparsely >populated island in the south pacific or something. > >Honestly, I'd like to hear from the lawyers on the list and hopefully >even the defense team, Ed, Martin, etc... - I have one simple question >that doesn't require a whole lot: > >Do we even have a chance? Or are we wasting our breath and watching >our so-called constitutional rights go down the tubes? Are we going >to have to just roll over and let the Kaplans and Valentis of the >world take control of everything we hold dear? Of course we have a chance. There are some real problems with the DCMA and there are some real problems with Kaplan's interpretation of it. A District Court is not usually going to go out on a limb on a first impressions case like this one unless the law is clearly unconstitutional under an existing Supreme Court decision -- it's just not their role in the big picture. While we had hope that Kaplan would see the light, the fact that he didn't dosn't predict the way the rest of the courts will view it. ut it's going to take time. This group wrote an excellent brief for Kaplan. He choose to disregard it. Some arguments developed here were used in the defandant's brief. A member of this list testified becuase he saw the statements of Shamos discussed here and had the appropriate background to contribute to the defense effort. This list has made a difference. But there's more to do. This case will be heard in the court of appeals and likely the Supreme Court but probably not for several years. There will be opportunities to help again, but it is easy to get discouraged and burnt out. Maybe you just need a brief vacation from the list. From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 25 15:51:13 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA27677 for dvd-discuss-outgoing; Fri, 25 Aug 2000 15:51:13 -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 PAA27671 for ; Fri, 25 Aug 2000 15:51:13 -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 OAA11925 for ; Fri, 25 Aug 2000 14:51:28 -0500 (CDT) Message-ID: <39A6CEEC.B0BFA359@uic.edu> Date: Fri, 25 Aug 2000 14:54:20 -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 is now claiming Chinese bootleg DVDs made with 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 Check out this article on watermarking: http://www.wired.com/news/technology/0,1282,38279-2,00.html A choice quote ... > The studios certainly have an incentive. MPAA senior > vice president of worldwide anti-piracy, Ken Jacobson, > was among the panelists. He had a number of movies > from China that were perfect duplicates of legitimate DVD > movies, made with the help of DeCSS. Who needs the truth anyhow? From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 25 15:51:13 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA27670 for dvd-discuss-outgoing; Fri, 25 Aug 2000 15:51:13 -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 PAA27666 for ; Fri, 25 Aug 2000 15:51:11 -0400 Received: from Jana-Server (user-38ld7fd.dialup.mindspring.com [209.86.157.237]) by maynard.mail.mindspring.net (8.9.3/8.8.5) with SMTP id PAA01015 for ; Fri, 25 Aug 2000 15:51:17 -0400 (EDT) Message-ID: <39A6CE80.8CA25535@mindspring.com> Date: Fri, 25 Aug 2000 15:52:32 -0400 From: mickeym X-Mailer: Mozilla 4.7 [en] (Win95; I) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] (fwd) ALERT: FCC considers restricting digital cable TV recording Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Remarks of FCC Commissioner Susan Ness Before the California Cable Television Association Western Show Los Angeles, California December 16, 1999 http://www.fcc.gov/Speeches/Ness/spsn913.html " I am committed to seeing a technological and legal environment in which Hollywood and the content community reasonably know that their product will retain its value and not be pirated. " and later... " Copy protection will only work if all of the network equipment, consumer equipment and software enable it." From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 25 16:07:44 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA27985 for dvd-discuss-outgoing; Fri, 25 Aug 2000 16:07:44 -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 QAA27982 for ; Fri, 25 Aug 2000 16:07:43 -0400 Received: from ip11.bedford2.ma.pub-ip.psi.net ([38.32.10.11]) by relay21.smtp.psi.net with smtp (Exim 3.13 #3) id 13SPld-0007Bd-00 for dvd-discuss@eon.law.harvard.edu; Fri, 25 Aug 2000 16:07:58 -0400 From: Ron Gustavson To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] MPAA is now claiming Chinese bootleg DVDs made with DeCSS Date: Fri, 25 Aug 2000 16:01:31 -0400 Message-ID: References: <39A6CEEC.B0BFA359@uic.edu> In-Reply-To: <39A6CEEC.B0BFA359@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 QAA27983 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, 25 Aug 2000 14:54:20 -0500, John Schulien wrote: >> The studios certainly have an incentive. MPAA senior >> vice president of worldwide anti-piracy, Ken Jacobson, >> was among the panelists. He had a number of movies >> from China that were perfect duplicates of legitimate DVD >> movies, made with the help of DeCSS. Of course he contradicts himself in the next paragraph... | Jacobson said in many cases the only way to tell a pirated | movie from the original is to take it to a lab and examine the | disc. The average viewer would never know the difference. >Who needs the truth anyhow? Diogenes. __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 25 16:12:36 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA28110 for dvd-discuss-outgoing; Fri, 25 Aug 2000 16:12:36 -0400 Received: from world.std.com (root@world-f.std.com [199.172.62.5]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id QAA28107 for ; Fri, 25 Aug 2000 16:12:34 -0400 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 QAA08716 for ; Fri, 25 Aug 2000 16:09:05 -0400 (EDT) Mime-Version: 1.0 Message-Id: In-Reply-To: References: <20000825045505.7589.qmail@web512.mail.yahoo.com> Date: Fri, 25 Aug 2000 16:09:02 -0400 To: dvd-discuss@eon.law.harvard.edu From: "Arnold G. Reinhold" Subject: Re: [dvd-discuss] Lady Chatterley's Lover? 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 12:40 PM -0400 8/25/2000, Ron Gustavson wrote: >On Fri, 25 Aug 2000 10:33:42 -0400, "Arnold G. Reinhold" wrote: > >>There is also the question of linguistic freedom. There have been >>decisions striking down English-only laws. Right now someone who >>wishes to view both English and Spanish videos needs to own two DVD >>players, or worse, two computers. I think that is arguably an >>impermissible burden. In the future if players are hard-coded by >>region of sale, they would not even have that option, and playing >>unauthorized foreign language videos will be a criminal act of >>circumvention. > >Too many MPA discs are multi-lingual to make this case for language alone. >But region codes do impose a restraint on trade between US vs. non-US films. >They also reduce the value of the purchased product. I don't think MPAA multi-lingual disks have much to do with this issue. They will be mostly dubs of American films. Only a small fraction of foreign language films will ever be released in the US. And while the MPAA may support the most commercially significant languages like Spanish and French, will they support Portuguese, Chinese (Mandarin, Cantonese, Taiwanese, ...), Hindu, Arabic, Korean, Greek, Cambodian, etc., etc.? >Of course, as someone said, you'll never get anyone in the industry to admit >there is a connection between region codes and CSS, even though >there probably is. > Is this in dispute? Without CSS it is easy to bypass region codes. Jon Johnason mentioned region codes in his testimony. In fact I would claim this is an legitimate fair use for the Windows version of DeCSS. A foreign language teacher could purchase DVDs on a trip overseas and use DeCSS to play them on the computer in his classroom without losing the ability to play US coded media. It might even be possible to get an amicus brief from some foreign language teacher's association. Arnold Reinhold From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 25 16:15:50 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA28239 for dvd-discuss-outgoing; Fri, 25 Aug 2000 16:15:50 -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 QAA28236 for ; Fri, 25 Aug 2000 16:15:49 -0400 Received: from ip11.bedford2.ma.pub-ip.psi.net ([38.32.10.11]) by relay21.smtp.psi.net with smtp (Exim 3.13 #3) id 13SPtU-0007Jj-00 for dvd-discuss@eon.law.harvard.edu; Fri, 25 Aug 2000 16:16:05 -0400 From: Ron Gustavson To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] MPAA is now claiming Chinese bootleg DVDs made with DeCSS Date: Fri, 25 Aug 2000 16:09:38 -0400 Message-ID: References: <39A6CEEC.B0BFA359@uic.edu> In-Reply-To: <39A6CEEC.B0BFA359@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 QAA28237 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu this is great... | Robert Pitkin, executive vice president of the Intellectual | Property Foundation, a group set up to combat video piracy | in China, told the audience there are more than 200,000 | outlets for illegal videos in China and that 80 to 90 percent | of all movies sold in the country are bootlegs. Could it be that when 90 percent of a market evades the legitimate channel, there is some problem with pricing or distribution--or perhaps release dates and region codes? | Despite attempts by Chinese authorities to put a stop to it, piracy | continues rampant in the country and is spreading, he said. "Despite highly publicized raids and crackdowns, local Chinese officials still find that DVD pirates can finance their children's four year education in one weekend." __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 25 16:17:11 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA28320 for dvd-discuss-outgoing; Fri, 25 Aug 2000 16:17:11 -0400 Received: from mail.lemuria.org (lemuria.borgfelde.ricardo.de [195.244.103.65]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id QAA28314 for ; Fri, 25 Aug 2000 16:17:09 -0400 Received: from lemuria.org by mail.lemuria.org via rsmtp with bsmtp id for ; Fri, 25 Aug 2000 22:12:57 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Received: by lemuria.org via sendmail with stdio id for dvd-discuss@eon.law.harvard.edu; Fri, 25 Aug 2000 21:47:16 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Date: Fri, 25 Aug 2000 21:47:15 +0200 From: Tom Vogt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] ok... Message-ID: <20000825214715.A6109@lemuria.org> References: <00082512003901.24844@www.rjmconsulting.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0pre3i In-Reply-To: <00082512003901.24844@www.rjmconsulting.com> X-Privacy: If you can, please encrypt your mails - finger for key Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Russell (James) Miller wrote: > Do we even have a chance? Or are we wasting our breath and watching our > so-called constitutional rights go down the tubes? Are we going to have to > just roll over and let the Kaplans and Valentis of the world take control of > everything we hold dear? if everything fails, you can always take up arms and start a second independence war. I'm afraid it won't get much smoother than that. groups with a 500%+ profit revenue stream don't give one inch of it without a fight. the more I learn about it, the more I see that MPAA and MAFIA are a lot alike. -- "The net treats censorship as a malfunction and re-routes around it." (John Gilmore) From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 25 16:19:36 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA28368 for dvd-discuss-outgoing; Fri, 25 Aug 2000 16:19:36 -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 QAA28365 for ; Fri, 25 Aug 2000 16:19:32 -0400 Message-ID: <20000825201917.5303.qmail@web513.mail.yahoo.com> Received: from [131.44.121.4] by web513.mail.yahoo.com; Fri, 25 Aug 2000 13:19:17 PDT Date: Fri, 25 Aug 2000 13:19:17 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] Database: H.R.1858, legislative status To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-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: > H.R.1858 > Sponsor: Rep Bliley, Tom (introduced 5/19/1999) > Latest Major Action: 10/8/1999 House preparation for floor > Title: To promote electronic commerce through improved access for > consumers to electronic databases, including securities market > information databases. Here's a page with information about HR 1858. Evidently this is the more recent alternative to HR 354. From a (very) preliminary glance, it does look like HR 1858 is "better" than the other one, but I'm still fuzzy on whether it's better than doing nothing. Does anybody see anything specific to be concerned about? http://www.databasedata.org/hr1858/hr1858.html#comparison __________________________________________________ Do You Yahoo!? Yahoo! Mail - Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 25 16:23:20 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA28422 for dvd-discuss-outgoing; Fri, 25 Aug 2000 16:23:20 -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 QAA28419 for ; Fri, 25 Aug 2000 16:23:19 -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 QAA07084 for ; Fri, 25 Aug 2000 16:23:34 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id QAA08823; Fri, 25 Aug 2000 16:23:34 -0400 (EDT) Date: Fri, 25 Aug 2000 16:23:34 -0400 (EDT) Message-Id: <200008252023.QAA08823@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] MPAA is now claiming Chinese bootleg DVDs made with DeCSS In-Reply-To: <39A6CEEC.B0BFA359@uic.edu> References: <39A6CEEC.B0BFA359@uic.edu> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu John Schulien writes: > A choice quote ... > > > The studios certainly have an incentive. MPAA senior > > vice president of worldwide anti-piracy, Ken Jacobson, > > was among the panelists. He had a number of movies > > from China that were perfect duplicates of legitimate DVD > > movies, made with the help of DeCSS. Compare and contrast to MPAA representative Dean Marks' testimony at the Stanford LOC hearing that CSS does *nothing* to eliminate bit-for-bit disk copying: 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. 4 MR. CARSON: Okay. So I don't see how 5 you're stopping the -- I don't see how you're 6 stopping the piracies of DVDs in that respect. 7 Pirated DVDs can be sold on the open marketplace and 8 played in any legitimate DVD player. 9 MR. MARKS: Without infringement 10 copyright? 11 MR. CARSON: No, no, no. Certainly not. 12 But we know pirated goods are on the market all the 13 time. 14 MR. MARKS: Yes, they are. (Marks is, of course, correct). rst From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 25 16:33:58 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA28559 for dvd-discuss-outgoing; Fri, 25 Aug 2000 16:33:58 -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 QAA28556 for ; Fri, 25 Aug 2000 16:33:56 -0400 Received: (from uucp@localhost) by natsemi-bh.nsc.com (8.8.8/8.6.11) id NAA17219 for ; Fri, 25 Aug 2000 13:34:11 -0700 (PDT) Received: from mailhost1.ia.nsc.com(147.5.200.40) by natsemi-bh.nsc.com via smap (4.1) id xma016974; Fri, 25 Aug 00 13:33:20 -0700 Received: from ball by ia.nsc.com (SMI-8.6/SMI-SVR4) id OAA21468; Fri, 25 Aug 2000 14:33:19 -0600 From: "John Zulauf" To: Subject: [dvd-discuss] (fwd) ALERT: FCC considers restricting digital cable TV recording Date: Fri, 25 Aug 2000 14:37:48 -0600 Message-ID: <002501c00ed4$54bb71c0$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 Two more hideously self contradictory quotes from "Remarks of FCC Commissioner Susan Ness Before the California Cable Television Association Western Show Los Angeles, California December 16, 1999" http://www.fcc.gov/Speeches/Ness/spsn913.html > And before digital content can flow, Hollywood needs > assurance that its rights to that content are > reasonably protected -- just as they are in an analog > world. At some level this is a reasonable statement -- though it is directly contradicted by the one below. One cannot provide the current level of protection and prevent piracy. The current level of protection does not protect priracy in the least. What is this "reasonably protected" scheme of which she speaks? Analog TV can be ditigally captured with a quality only limited by the reception or cable connections (and of course the digital recording mechanism). MPEG-1 encoders are $25 dollars -- the low cost making appliances like the TiVO possible. The only protections content has currently is "access control". Once access is granted, (the content is broadcast or a descrambler is programmed for a given channel) that content is fully suseptible to any form of copying limited only by the equipment bugdet of the pirate. > But if a first-run digital product immediately can be > captured off air or off cable and replicated like a > master copy or webcast globally Here's that "digital content is more vulnerable" lie again. Content, once published is by definition vulnerable. Some small and relatively inexpensive hardware is needed to digitize analog content. However the risk item is not the digital nature of the broadcast or published content, but the digital nature of modern recording and duplication technologies. Given that the nature of the input content to digital duplication is irrelevant and digital content is no more at risk than it's current analog brethren, what is the point of the next statement? > -- without payment to > the copyright holders, producers are going to be > reluctant to release their product. I am committed to > seeing a technological and legal environment in which > Hollywood and the content community reasonably know > that their product will retain its value and not be > pirated. "Methinks the lady doth protest too much." Hollywood has complained, nagged, and whined about this subject so long the government believes it must be true. Nonsense. When HD reaches even a modest market share or maturity, the status of copy protection technology won't matter to the content providers. Why? It's called the prisoners' dilemma** -- since each content provider doens't know for sure that all content providers will boycott the new medium, the risk loosing marketshare, mindshare, and brand loyalty. Thus they will broadcast, despite the risks, because not to do so is simply to lose to their competitors by default-- quitting the field to someone who is willing to take the percieved risk of digital broadcast. ** while collusion can avoid the prisoners dilemma, it is illegal. Commissioner Ness has it exactly backwards, the > the horror-film version, in which the family brings > home the new set, turns it on, and sees nothing but > a blank screen. is not the risk. The risk is that the American people will allow the bluster of the media companies to frighten them with the big lie, and while the airwaves are full -- their rights as citizens are empty. That's Farhenhiet 451, a real horror-film. "They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety." - Benjamin Franklin, Historical Review of Pennsylvania, 1759. Trade "safety" for "digital content" to see how far this Faustian deal falls from our foundational ideal. John Zulauf private netizen From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 25 16:39:58 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA28682 for dvd-discuss-outgoing; Fri, 25 Aug 2000 16:39:58 -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 QAA28679 for ; Fri, 25 Aug 2000 16:39:57 -0400 Message-ID: <20000825203939.7476.qmail@web513.mail.yahoo.com> Received: from [131.44.121.4] by web513.mail.yahoo.com; Fri, 25 Aug 2000 13:39:39 PDT Date: Fri, 25 Aug 2000 13:39:39 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] ok... To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --- "Russell (James) Miller" wrote: > Do we even have a chance? Or are we wasting our breath and watching > our so-called constitutional rights go down the tubes? Are we > going to have to just roll over and let the Kaplans and Valentis > of the world take control of everything we hold dear? I can easily empathize with your frustration. Given that Kaplan just ignored all the seemingly strong arguments that the defense (and we) put to him, it can be easy to get discouraged. DON'T BE!! Now is the time to be more agressive, to be more bold, to be more vocal and press the issue. Kaplan is only one judge. We were unlucky to draw him, the MPAA was lucky to get him. If we'd won, it'd still be under appeal. We're about to get a new panel of judges, and for the first time we are on the attack, not the defense. Kaplan has put his opinion in writing and we can take it's flaws to task. I've read several of the 2nd Circuit's Appeals Court's free speech decisions. They seem well reasoned and sharp. I don't think we'll be talking to the wall. If anything, the MPAA may be overconfident. Incidentally, Martin Garbus & Robin Gross will be responding to the Slashdot interview soon, so they'll probably answer your question. I think I know what they'll say. __________________________________________________ Do You Yahoo!? Yahoo! Mail - Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 25 16:48:10 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA28790 for dvd-discuss-outgoing; Fri, 25 Aug 2000 16:48:10 -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 QAA28787 for ; Fri, 25 Aug 2000 16:48:08 -0400 Received: from Jana-Server (user-38lcnv6.dialup.mindspring.com [209.86.95.230]) by blount.mail.mindspring.net (8.9.3/8.8.5) with SMTP id QAA25365 for ; Fri, 25 Aug 2000 16:48:19 -0400 (EDT) Message-ID: <39A6DBD0.F2252460@mindspring.com> Date: Fri, 25 Aug 2000 16:49:20 -0400 From: mickeym X-Mailer: Mozilla 4.7 [en] (Win95; I) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] (fwd) ALERT: FCC considers restricting digital cable Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu What is "5C" ? =============================================== http://www.fcc.gov/Speeches/Kennard/2000/spwek001.html Here too, the Commission has encouraged negotiations between content providers and distributors and CE manufacturers. 5C appears to be the most promising copy protection technology. But there remain significant licensing and implementation issues. Consumers can have choice without theft. The technology can be used, for example, to limit use of the programming to one copy, or one viewing, or multiple copies and viewings for a price. This was the concept behind Divix, even though that particular solution was not accepted by the marketplace. But the technology that presents the problem also offers the promise of a solution. We must not let the naysayers stop progress toward a solution. http://www.fcc.gov/Bureaus/Miscellaneous/News_Releases/1999/nrmc9051.txt Additionally, the National Cable Television Association and the National Association of Broadcasters have announced their support for the 5C copy protection technology and their endorsement of the IEEE 1394 interface (as embodied in two specific standards, EIA-775 and SCTE DVS-194) to promote compatibility between DTV receivers and digital set-top boxes. From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 25 17:17:17 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA29547 for dvd-discuss-outgoing; Fri, 25 Aug 2000 17:17:17 -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 RAA29543 for ; Fri, 25 Aug 2000 17:17:16 -0400 Received: (from uucp@localhost) by natsemi-bh.nsc.com (8.8.8/8.6.11) id OAA06052 for ; Fri, 25 Aug 2000 14:17:31 -0700 (PDT) Received: from mailhost1.ia.nsc.com(147.5.200.40) by natsemi-bh.nsc.com via smap (4.1) id xma004995; Fri, 25 Aug 00 14:15:14 -0700 Received: from ball by ia.nsc.com (SMI-8.6/SMI-SVR4) id PAA26188; Fri, 25 Aug 2000 15:15:13 -0600 From: "John Zulauf" To: Subject: [dvd-discuss] (fwd) ALERT: FCC considers restricting digital cable Date: Fri, 25 Aug 2000 15:19:43 -0600 Message-ID: <002601c00eda$2fa55e40$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 From: mickeym Date: Fri, 25 Aug 2000 16:49:20 -0400 > What is "5C" ? =============================================== http://www.fcc.gov/Speeches/Kennard/2000/spwek001.html Here too, the Commission has encouraged negotiations between content providers and distributors and CE manufacturers. 5C appears to be the most promising copy protection technology. But there remain significant licensing and implementation issues. I hope I'm wrong but this may be the same as the 4C (four companies Intel Corporation, International Business Machines Corporation, Matsushita Electric Industrial Co., Ltd., and Toshiba Corporation ) of CPSA fame (or infamy) which I critiqued in my LOC comments CPSA documentations (truly draconian) http://www.dvdcca.org/4centity/data/tech/cpsa/cpsa081.pdf my comments on the impact of CPSA http://www.loc.gov/copyright/reports/studies/dmca/comments/Init011.pdf If this is what the FCC is thinking is a good idea, we must reply to their request for comments. John M. Zulauf private netizen From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 25 17:24:10 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA30324 for dvd-discuss-outgoing; Fri, 25 Aug 2000 17:24:10 -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 RAA30321 for ; Fri, 25 Aug 2000 17:24:09 -0400 Received: from Jana-Server (user-38ld15m.dialup.mindspring.com [209.86.132.182]) by smtp10.atl.mindspring.net (8.9.3/8.8.5) with SMTP id RAA10678 for ; Fri, 25 Aug 2000 17:24:22 -0400 (EDT) Message-ID: <39A6E34A.44C33F2F@mindspring.com> Date: Fri, 25 Aug 2000 17:21:14 -0400 From: mickeym X-Mailer: Mozilla 4.7 [en] (Win95; I) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] (fwd) ALERT: FCC considers restricting digital cable Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Interesting quote from Zenith: http://www.zenith.com/122298.html Additionally, the 5C proposal requires that "secrets" (key management, encryption), which are not easily renewable, be imbedded within the DTV receiver. Given the history of electronic piracy, it is a matter of when, not if, a system will be breached by pirates. Zenith is concerned that if a security breach is accomplished, the consumer device incorporating 5C will suffer revocation and will go dark for those services, irrespective of the consumer's guilt or innocence with respect to piracy. Without a means of renewing those "secrets," the consumer will be denied full use of his or her legacy consumer product. From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 25 17:40:00 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA31467 for dvd-discuss-outgoing; Fri, 25 Aug 2000 17:40:00 -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 RAA31464 for ; Fri, 25 Aug 2000 17:40:00 -0400 Received: from ip27.bedford3.ma.pub-ip.psi.net ([38.32.11.27]) by relay20.smtp.psi.net with smtp (Exim 3.13 #3) id 13SRCx-0001Ia-00 for dvd-discuss@eon.law.harvard.edu; Fri, 25 Aug 2000 17:40:15 -0400 From: Ron Gustavson To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] (fwd) ALERT: FCC considers restricting digital cable TV recording Date: Fri, 25 Aug 2000 17:33:49 -0400 Message-ID: References: <002501c00ed4$54bb71c0$87ce0593@ia.nsc.com> In-Reply-To: <002501c00ed4$54bb71c0$87ce0593@ia.nsc.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 RAA31465 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu The shame is that this is one of the watchdogs speaking... On Fri, 25 Aug 2000 14:37:48 -0600, "John Zulauf" wrote: >Two more hideously self contradictory quotes from "Remarks of FCC >Commissioner Susan Ness Before the California Cable Television Association >Western Show Los Angeles, California December 16, 1999" > >http://www.fcc.gov/Speeches/Ness/spsn913.html > >> And before digital content can flow, Hollywood needs >> assurance that its rights to that content are >> reasonably protected -- just as they are in an analog >> world. Digital content is flowing. Hollywood only needs to participate or get out of the way. It's their choice. >> But if a first-run digital product immediately can be >> captured off air or off cable and replicated like a >> master copy or webcast globally _IF_? With all manner of capture cards available, why isn't this happening already? >Here's that "digital content is more vulnerable" lie again. Content, once >published is by definition vulnerable. Some small and relatively >inexpensive hardware is needed to digitize analog content. However the risk >item is not the digital nature of the broadcast or published content, but >the digital nature of modern recording and duplication technologies. Given >that the nature of the input content to digital duplication is irrelevant >and digital content is no more at risk than it's current analog brethren, >what is the point of the next statement? I'd say that analog is more vulnerable to being forced out of the marketplace. Mr Valenti, having recommended VHS as a fair use substitute for teachers and librarians, should commit to supporting VHS movies for as long as access controls protect their content. >> -- without payment to >> the copyright holders, producers are going to be >> reluctant to release their product. I am committed to >> seeing a technological and legal environment in which >> Hollywood and the content community reasonably know >> that their product will retain its value and not be >> pirated. And what about the rest of us Ms. Comissioner? >"Methinks the lady doth protest too much." Hollywood has complained, nagged, >and whined about this subject so long the government believes it must be >true. Nonsense. When HD reaches even a modest market share or maturity, >the status of copy protection technology won't matter to the content >providers. Why? It's called the prisoners' dilemma** -- since each content >provider doens't know for sure that all content providers will boycott the >new medium, the risk loosing marketshare, mindshare, and brand loyalty. >Thus they will broadcast, despite the risks, because not to do so is simply >to lose to their competitors by default-- quitting the field to someone who >is willing to take the percieved risk of digital broadcast. Right on! >** while collusion can avoid the prisoners dilemma, it is illegal. > >Commissioner Ness has it exactly backwards, the > >> the horror-film version, in which the family brings >> home the new set, turns it on, and sees nothing but >> a blank screen. Yeah right. When hell freezes over. | How do we avoid the horror story? Plug in a PC. __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 25 18:31:44 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA31695 for dvd-discuss-outgoing; Fri, 25 Aug 2000 18:31:44 -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 SAA31690 for ; Fri, 25 Aug 2000 18:31:43 -0400 Received: from mediaone.net (h0060b03c5b8b.ne.mediaone.net [24.128.18.77]) by chmls06.mediaone.net (8.8.7/8.8.7) with ESMTP id SAA02346 for ; Fri, 25 Aug 2000 18:31:58 -0400 (EDT) Message-ID: <39A6F3DE.FA68D420@mediaone.net> Date: Fri, 25 Aug 2000 18:31:58 -0400 From: Sphere X-Mailer: Mozilla 4.73 [en] (WinNT; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss Subject: [dvd-discuss] NEW YORK TIMES CO. v. UNITED STATES, 403 U.S. 713 (1971), etc. Content-Type: text/plain; charset=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've been exploring the wonders of FindLaw. In exploring the issue of First Amendment rights I came first upon NEW YORK TIMES CO. v. UNITED STATES, 403 U.S. 713 (1971), and then started exploring it's citations. NEW YORK TIMES CO. v. UNITED STATES is better known as The Pentagon Papers. Question: Has anyone considered asking the USSJC for an emergency stay of Kaplan's ruling? Some of the citations would argue in favor, but only if it doesn't seem we waited too long before asking. See: CBS, INC. v. DAVIS, ___ U.S. ___ (1994), but there was another one in there somewhere that was rejected because the defense diddled about for three months before asking. It seems that even though the court is unwilling to state that truth is _always_ a sufficient defense for Press Freedoms, there's almost nothing they consider a sufficient governmental interest, or even a privacy interest, to override it. (DeCSS is true, after all.) >From SMITH v. DAILY MAIL PUBLISHING CO., 443 U.S. 97 (1979): "Our recent decisions demonstrate that state action to punish the publication of truthful information seldom can satisfy constitutional standards. In Landmark Communications we declared unconstitutional a Virginia statute making it a crime to publish information regarding confidential proceedings before a state judicial review commission that heard complaints about alleged disabilities and misconduct of state-court judges. In declaring that statute unconstitutional, we concluded: "[T]he publication Virginia seeks to punish under its statute lies near the core of the First Amendment, and the Commonwealth's interests advanced by the imposition of criminal sanctions are insufficient to justify the actual and potential encroachments on freedom of speech and of the press which follow therefrom." 435 U.S., at 838 . In Cox Broadcasting Corp. v. Cohn, supra, we held that damages could not be recovered against a newspaper for publishing the name of a rape victim. The suit had been based on a state statute that made it a crime to publish the name of the victim; the purpose of the statute was [443 U.S. 97, 103] to protect the privacy right of the individual and the family. The name of the victim had become known to the public through official court records dealing with the trial of the rapist." In THE FLORIDA STAR v. B. J. F., 491 U.S. 524 (1989): "In our view, this case is appropriately analyzed with reference to such a limited First Amendment principle. It is the one, in fact, which we articulated in Daily Mail in our synthesis of prior cases involving attempts to punish truthful publication: "[I]f a newspaper lawfully obtains truthful information about a matter of public significance then state officials may not constitutionally punish publication of the information, absent a need to further a state interest of the highest order." 443 U.S., at 103 . According the press the ample protection provided by that principle is supported by at least three separate considerations, in addition to, of course, the overarching "`public interest, secured by the Constitution, in the dissemination of truth.'" Cox Broadcasting, [491 U.S. 524, 534] supra, at 491, quoting Garrison, supra, at 73 (footnote omitted). The cases on which the Daily Mail synthesis relied demonstrate these considerations. "... In LANDMARK COMMUNICATIONS, INC. v. VIRGINIA, 435 U.S. 829 (1978): "Mr. Justice Brandeis was even more pointed in his concurrence in Whitney v. California, 274 U.S. 357, 378 -379 (1927): "[A legislative declaration] does not preclude enquiry into the question whether, at the time and under the circumstances, [435 U.S. 829, 844] the conditions existed which are essential to validity under the Federal Constitution. . . . Whenever the fundamental rights of free speech and assembly are alleged to have been invaded, it must remain open to a defendant to present the issue whether there actually did exist at the time a clear danger; whether the danger, if any, was imminent; and whether the evil apprehended was one so substantial as to justify the stringent restriction interposed by the legislature." A legislature appropriately inquires into and may declare the reasons impelling legislative action but the judicial function commands analysis of whether the specific conduct charged falls within the reach of the statute and if so whether the legislation is consonant with the Constitution. Were it otherwise, the scope of freedom of speech and of the press would be subject to legislative definition and the function of the First Amendment as a check on legislative power would be nullified." See FindLaw and search Supreme Court Opinions "403 U.S. 713" for more, including the case of the CIA agent who published without consulting the CIA (which I failing to mark). --- -- Sphere. Is DeCSS.c obscene? Why can't I read it? Can knowledge be forbidden? From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 25 20:03:45 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA32689 for dvd-discuss-outgoing; Fri, 25 Aug 2000 20:03:45 -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 UAA32686 for ; Fri, 25 Aug 2000 20:03:44 -0400 Received: from mediaone.net (h0060b03c5b8b.ne.mediaone.net [24.128.18.77]) by chmls06.mediaone.net (8.8.7/8.8.7) with ESMTP id UAA03842 for ; Fri, 25 Aug 2000 20:04:00 -0400 (EDT) Message-ID: <39A70970.6CFFE505@mediaone.net> Date: Fri, 25 Aug 2000 20:04:00 -0400 From: Sphere X-Mailer: Mozilla 4.73 [en] (WinNT; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss Subject: [dvd-discuss] NEBRASKA PRESS ASSN. v. STUART, 427 U.S. 539 (1976) Content-Type: text/plain; charset=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 commentator has cogently summarized many of the reasons for this deep-seated American hostility to prior restraints: "A system of prior restraint is in many ways more inhibiting than a system of subsequent punishment: It is likely to bring under government scrutiny a far wider range of expression; it shuts off communication before it takes place; suppression by a stroke of the pen is more likely to be applied than suppression through a criminal process; the procedures [427 U.S. 539, 590] do not require attention to the safeguards of the criminal process; the system allows less opportunity for public appraisal and criticism; the dynamics of the system drive toward excesses, as the history of all censorship shows." T. Emerson, The System of Freedom of Expression 506 (1970). 17 Respondents correctly contend that "the [First Amendment] protection even as to previous restraint is not absolutely unlimited." Near v. Minnesota ex rel. Olson, supra, at 716. However, the exceptions to the rule have been confined to "exceptional cases." Ibid. The Court in Near, the first case in which we were faced with a prior restraint against the press, delimited three such possible exceptional circumstances. The first two exceptions were that "the primary requirements of decency may be enforced against obscene publications," and that "[t]he security of the community life may be protected against incitements to acts of violence and the overthrow by force of orderly government [for] [t]he constitutional guaranty of free speech does not `protect a man from an injunction against uttering words that may have all the effect of force. . . .'" Ibid. These exceptions have since come to be interpreted as situations in which the "speech" involved is not encompassed within the meaning of the First Amendment. See, e. g., Roth v. United States, 354 U.S. 476, 481 (1957); Miller v. California, 413 U.S. 15 (1973); Chaplinsky v. New Hampshire, 315 U.S. 568 (1942). See also New York Times Co. v. United States, 403 U.S., at 726 n. (BRENNAN, J., concurring); id., at 731 n. 1 (WHITE, J., concurring). [427 U.S. 539, 591] And even in these situations, adequate and timely procedures are mandated to protect against any restraint of speech that does come within the ambit of the First Amendment. See, e. g., Southeastern Promotions, Ltd. v. Conrad, supra; United States v. Thirty-seven Photographs, 402 U.S. 363 (1971); Freedman v. Maryland, 380 U.S. 51 (1965); Bantam Books, Inc. v. Sullivan, 372 U.S. 58 (1963); Speiser v. Randall, 357 U.S. 513 (1958); Kingsley Books, Inc. v. Brown, 354 U.S. 436 (1957). Thus, only the third category in Near contemplated the possibility that speech meriting and entitled to constitutional protection might nevertheless be suppressed before publication in the interest of some overriding countervailing interest: "`When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right.' Schenck v. United States, 249 U.S. 47, 52 . No one would question but that a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops." 283 U.S., at 716 . Even this third category, however, has only been adverted to in dictum and has never served as the basis for actually upholding a prior restraint against the publication of constitutionally protected materials. In New York Times Co. v. United States, supra, we specifically addressed the scope of the "military security" exception alluded to in Near and held that there could be no prior restraint on publication of the "Pentagon Papers" despite the fact that a majority of the Court believed that release of the documents, which were [427 U.S. 539, 592] classified "Top Secret-Sensitive" and which were obtained surreptitiously, would be harmful to the Nation and might even be prosecuted after publication as a violation of various espionage statutes. To be sure, our brief per curiam declared that "`[a]ny system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity,'" id., at 714, quoting Bantam Books, Inc. v. Sullivan, supra, at 70, and that the "Government `thus carries a heavy burden of showing justification for the imposition of such a restraint.'" 403 U.S., at 714 , quoting Organization for a Better Austin v. Keefe, 402 U.S. 415, 419 (1971). This does not mean, as the Nebraska Supreme Court assumed, 18 that prior restraints can be justified on an ad hoc balancing approach that concludes that the "presumption" must be overcome in light of some perceived "justification." Rather, this language refers to the fact that, as a matter of procedural safeguards and burden of proof, prior restraints even within a recognized exception to the rule against prior restraints will be extremely difficult to justify; but as an initial matter, the purpose for which a prior restraint is sought to be imposed "must fit within one of the narrowly defined exceptions to the prohibition against prior restraints." -- Sphere. Is DeCSS.c obscene? Why can't I read it? Can knowledge be forbidden? From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 25 20:22:22 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA00461 for dvd-discuss-outgoing; Fri, 25 Aug 2000 20:22:22 -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 UAA00458 for ; Fri, 25 Aug 2000 20:22:21 -0400 Received: from jy01 (user-2inig53.dialup.mindspring.com [165.121.64.163]) by smtp6.mindspring.com (8.9.3/8.8.5) with SMTP id UAA00505 for ; Fri, 25 Aug 2000 20:22:35 -0400 (EDT) Message-Id: <200008260022.UAA00505@smtp6.mindspring.com> X-Sender: jya@pop.pipeline.com X-Mailer: QUALCOMM Windows Eudora Pro Version 4.0 Date: Fri, 25 Aug 2000 20:14:55 -0400 To: dvd-discuss@eon.law.harvard.edu From: John Young Subject: [dvd-discuss] DVD CCA Opposition to Pavlovich Quash Motion In-Reply-To: <39A70970.6CFFE505@mediaone.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 Thanks to EFF, we offer DVD CCA's Memorandum of Opposition to the Pavlovich Quash Motion, dated August 18: http://cryptome.org/dvd-v-521-opq.htm (39K) It opens with this statement: Defendant Pavlovich is a leader in the so-called "open source" movement, which is dedicated to the proposition that material, copyrighted or not, should be made available over the Internet for free. Acting in concert with like-minded individuals throughout the world, Pavlovich engaged in purposeful, unlawful conduct directed toward substantial business enterprises in the State of California. He did so knowing that his actions would adversely affect these business enterprises and that his actions had the effect of circumventing trade secret protections established by and for the benefit of those business enterprises. Without denying any of these facts, Pavlovich argues that he has not purposefully availed himself of this forum and that he cannot therefore be subject to this Court's jurisdiction. This argument is untenable under the California long arm statue and related case law. From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 25 20:50:11 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA00744 for dvd-discuss-outgoing; Fri, 25 Aug 2000 20:50:11 -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 UAA00741 for ; Fri, 25 Aug 2000 20:50:11 -0400 Received: from mediaone.net (h0060b03c5b8b.ne.mediaone.net [24.128.18.77]) by chmls06.mediaone.net (8.8.7/8.8.7) with ESMTP id UAA20547 for ; Fri, 25 Aug 2000 20:50:27 -0400 (EDT) Message-ID: <39A71453.23BD582D@mediaone.net> Date: Fri, 25 Aug 2000 20:50:27 -0400 From: Sphere X-Mailer: Mozilla 4.73 [en] (WinNT; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] DVD CCA Opposition to Pavlovich Quash Motion References: <200008260022.UAA00505@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: > > Thanks to EFF, we offer DVD CCA's Memorandum of > Opposition to the Pavlovich Quash Motion, dated August 18: > > http://cryptome.org/dvd-v-521-opq.htm (39K) > > It opens with this statement: > > Defendant Pavlovich is a leader in the so-called "open source" > movement, which is dedicated to the proposition that material, > copyrighted or not, should be made available over the Internet > for free. Acting in concert with like-minded individuals > throughout the world, Pavlovich engaged in purposeful, > unlawful conduct directed toward substantial business > enterprises in the State of California. He did so knowing that > his actions would adversely affect these business enterprises > and that his actions had the effect of circumventing trade > secret protections established by and for the benefit of those > business enterprises. Without denying any of these facts, > Pavlovich argues that he has not purposefully availed himself > of this forum and that he cannot therefore be subject to this > Court's jurisdiction. This argument is untenable under > the California long arm statue and related case law. NTERNATIONAL SHOE CO. v. WASHINGTON, 326 U.S. 310 (1945) "It is evident that the criteria by which we mark the boundary line between those activities which justify the subjection of a corporation to suit, and those which do not, cannot be simply mechanical or quantitative. The test is not merely, as has sometimes been suggested, whether the activity, which the corporation has seen fit to procure through its agents in another state, is a little more or a little less. St. Louis S.W.R. Co. v. Alexander, supra, 227 U.S. 228 , 33 S.Ct. 248, Ann.Cas. 1915B, 77; International Harvestor Co. v. Kentucky, supra, 234 U.S. 587 , 34 S.Ct. 946. Whether due process is satisfied must depend rather upon the quality and nature of the activity in relation to the fair and orderly administration of the laws which it was the purpose of the due process clause to insure. That clause does not contemplate that a state may make binding a judgment in personam against an individual or corporate defendant with which the state has no contacts, ties, or relations. Cf. Pennoyer v. Neff, supra; Minnesota Commercial Men's Ass'n v. Benn, 261 U.S. 140 , 43 S.Ct. 293. WORLD-WIDE VOLKSWAGEN CORP. v. WOODSON, 444 U.S. 286 (1980) "This is not to say, of course, that foreseeability is wholly irrelevant. But the foreseeability that is critical to due process analysis is not the mere likelihood that a product will find its way into the forum State. Rather, it is that the defendant's conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there. See Kulko v. California Superior Court, supra, at 97-98; Shaffer v. Heitner, 433 U.S., at 216 ; and see id., at 217-219 (STEVENS, J., concurring in judgment). The Due Process Clause, by ensuring the "orderly administration of the laws," International Shoe Co. v. Washington, 326 U.S., at 319 , gives a degree of predictability to the legal system that allows potential defendants to structure their primary conduct with some minimum assurance as to where that conduct will and will not render them liable to suit." SHAFFER v. HEITNER, 433 U.S. 186 (1977) "The requirement of fair notice also, I believe, includes fair warning that a particular activity may subject a person to the jurisdiction of a foreign sovereign. If I visit another State, or acquire real estate or open a bank account in it, I knowingly assume some risk that the State will exercise its power over my property or my person while there. My contact with the State, though minimal, gives rise to predictable risks." (I'm starting at BURGER KING CORP. v. RUDZEWICZ, 471 U.S. 462 (1985) , but I haven't even looked to see what the case was about...) -- Sphere. Is DeCSS.c obscene? Why can't I read it? Can knowledge be forbidden? From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 25 20:59:27 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA00944 for dvd-discuss-outgoing; Fri, 25 Aug 2000 20:59:27 -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 UAA00941 for ; Fri, 25 Aug 2000 20:59:26 -0400 Received: from mediaone.net (h0060b03c5b8b.ne.mediaone.net [24.128.18.77]) by chmls06.mediaone.net (8.8.7/8.8.7) with ESMTP id UAA23807 for ; Fri, 25 Aug 2000 20:59:42 -0400 (EDT) Message-ID: <39A7167E.309CFCCC@mediaone.net> Date: Fri, 25 Aug 2000 20:59:42 -0400 From: Sphere X-Mailer: Mozilla 4.73 [en] (WinNT; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] DVD CCA Opposition to Pavlovich Quash Motion References: <200008260022.UAA00505@smtp6.mindspring.com> <39A71453.23BD582D@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 This 9th circuit openion's discussion seems clear to me. http://laws.findlaw.com/9th/9516658.html Sphere wrote: > > John Young wrote: > > > > Thanks to EFF, we offer DVD CCA's Memorandum of > > Opposition to the Pavlovich Quash Motion, dated August 18: > > > > http://cryptome.org/dvd-v-521-opq.htm (39K) > > > > It opens with this statement: > > > > Defendant Pavlovich is a leader in the so-called "open source" > > movement, which is dedicated to the proposition that material, > > copyrighted or not, should be made available over the Internet > > for free. Acting in concert with like-minded individuals > > throughout the world, Pavlovich engaged in purposeful, > > unlawful conduct directed toward substantial business > > enterprises in the State of California. He did so knowing that > > his actions would adversely affect these business enterprises > > and that his actions had the effect of circumventing trade > > secret protections established by and for the benefit of those > > business enterprises. Without denying any of these facts, > > Pavlovich argues that he has not purposefully availed himself > > of this forum and that he cannot therefore be subject to this > > Court's jurisdiction. This argument is untenable under > > the California long arm statue and related case law. > > NTERNATIONAL SHOE CO. v. WASHINGTON, 326 U.S. 310 (1945) > > "It is evident that the criteria by which we mark the boundary line > between those activities which justify the subjection of a corporation > to suit, and those which do not, cannot be simply mechanical or > quantitative. The test is not merely, as has sometimes been suggested, > whether the activity, which the corporation has seen fit to procure > through its agents in another state, is a little more or a little less. > St. Louis S.W.R. Co. v. Alexander, supra, 227 U.S. 228 , 33 S.Ct. 248, > Ann.Cas. 1915B, 77; International Harvestor Co. v. Kentucky, supra, > 234 U.S. 587 , 34 S.Ct. 946. Whether due process is satisfied must > depend > rather upon the quality and nature of the activity in relation to the > fair and orderly administration of the laws which it was the purpose of > the due process clause to insure. That clause does not contemplate that > a state may make binding a judgment in personam against an individual or > corporate defendant with which the state has no contacts, ties, or > relations. > Cf. Pennoyer v. Neff, supra; Minnesota Commercial Men's Ass'n v. Benn, > 261 U.S. 140 , 43 S.Ct. 293. > > WORLD-WIDE VOLKSWAGEN CORP. v. WOODSON, 444 U.S. 286 (1980) > > "This is not to say, of course, that foreseeability is wholly > irrelevant. But the foreseeability that is critical to due process > analysis is not the mere likelihood that a product will find its > way into the forum State. Rather, it is that the defendant's conduct > and connection with the forum State are such that he should reasonably > anticipate being haled into court there. See Kulko v. California > Superior Court, supra, at 97-98; Shaffer v. Heitner, 433 U.S., at 216 ; > and see id., at 217-219 (STEVENS, J., concurring in judgment). The Due > Process Clause, by ensuring the "orderly administration of the laws," > International Shoe Co. v. Washington, 326 U.S., at 319 , gives a degree > of > predictability to the legal system that allows potential defendants to > structure their primary conduct with some minimum assurance as to where > that conduct will and will not render them liable to suit." > > SHAFFER v. HEITNER, 433 U.S. 186 (1977) > > "The requirement of fair notice also, I believe, includes fair warning > that a particular activity may subject a person to the jurisdiction of > a foreign sovereign. If I visit another State, or acquire real estate or > open a bank account in it, I knowingly assume some risk that the State > will exercise its power over my property or my person while there. My > contact with the State, though minimal, gives rise to predictable > risks." > > (I'm starting at BURGER KING CORP. v. RUDZEWICZ, 471 U.S. 462 (1985) , > but I haven't even looked to see what the case was about...) > > -- > Sphere. > > Is DeCSS.c obscene? Why can't I read it? > Can knowledge be forbidden? -- Sphere. Is DeCSS.c obscene? Why can't I read it? Can knowledge be forbidden? From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 25 21:20:04 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA01267 for dvd-discuss-outgoing; Fri, 25 Aug 2000 21:20:04 -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 VAA01264 for ; Fri, 25 Aug 2000 21:20:03 -0400 Received: from ip200.bedford2.ma.pub-ip.psi.net ([38.32.10.200]) by relay21.smtp.psi.net with smtp (Exim 3.13 #3) id 13SUdv-0002Ow-00 for dvd-discuss@eon.law.harvard.edu; Fri, 25 Aug 2000 21:20:19 -0400 From: Ron Gustavson To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] DVD CCA Opposition to Pavlovich Quash Motion Date: Fri, 25 Aug 2000 21:13:53 -0400 Message-ID: <2b6eqskb8kjf0jhfbvmo0p31ucgii4pmtk@4ax.com> References: <39A70970.6CFFE505@mediaone.net> <200008260022.UAA00505@smtp6.mindspring.com> In-Reply-To: <200008260022.UAA00505@smtp6.mindspring.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 VAA01265 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, 25 Aug 2000 20:14:55 -0400, John Young wrote: >Thanks to EFF, we offer DVD CCA's Memorandum of >Opposition to the Pavlovich Quash Motion, dated August 18: > > http://cryptome.org/dvd-v-521-opq.htm (39K) > >It opens with this statement: > > Defendant Pavlovich is a leader in the so-called "open source" > movement, which is dedicated to the proposition that material, > copyrighted or not, should be made available over the Internet > for free. Acting in concert with like-minded individuals Is this not slander? Well, I guess we know where Hollywood's coming from. Too bad they haven't a clue--or a scruple. __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 25 21:23:10 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA01384 for dvd-discuss-outgoing; Fri, 25 Aug 2000 21:23:10 -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 VAA01381 for ; Fri, 25 Aug 2000 21:23:09 -0400 Received: from ip200.bedford2.ma.pub-ip.psi.net ([38.32.10.200]) by relay21.smtp.psi.net with smtp (Exim 3.13 #3) id 13SUgr-0002Q8-00 for dvd-discuss@eon.law.harvard.edu; Fri, 25 Aug 2000 21:23:26 -0400 From: Ron Gustavson To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] DVD CCA Opposition to Pavlovich Quash Motion Date: Fri, 25 Aug 2000 21:16:36 -0400 Message-ID: References: <39A70970.6CFFE505@mediaone.net> <200008260022.UAA00505@smtp6.mindspring.com> In-Reply-To: <200008260022.UAA00505@smtp6.mindspring.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 VAA01382 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > Defendant Pavlovich is a leader in the so-called "open source" > movement, which is dedicated to the proposition that material, > copyrighted or not, should be made available over the Internet > for free. Acting in concert with like-minded individuals ps. I can't imagine any members of DVDCCA have traded in any Red Hat stock in the past year or so. __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 25 21:29:04 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA01469 for dvd-discuss-outgoing; Fri, 25 Aug 2000 21:29:04 -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 VAA01466 for ; Fri, 25 Aug 2000 21:29:03 -0400 Received: from ip200.bedford2.ma.pub-ip.psi.net ([38.32.10.200]) by relay21.smtp.psi.net with smtp (Exim 3.13 #3) id 13SUmd-0002S9-00 for dvd-discuss@eon.law.harvard.edu; Fri, 25 Aug 2000 21:29:19 -0400 From: Ron Gustavson To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] DVD CCA Opposition to Pavlovich Quash Motion Date: Fri, 25 Aug 2000 21:22:48 -0400 Message-ID: References: <39A70970.6CFFE505@mediaone.net> <200008260022.UAA00505@smtp6.mindspring.com> In-Reply-To: <200008260022.UAA00505@smtp6.mindspring.com> X-Mailer: Forte Agent 1.8/32.548 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 VAA01467 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu | As is often noted, "one who intentionally shoots a bullet into a state | is as subject to the judicial jurisdiction of [that] state ... as if he had | actually fired the bullet in the state." See, e.g., Schlussel v. Schlussel, | 141 20 21 Cal.App.3d 194, 197 (citing Restatement Second of | Conflict of Laws, § 37). Wow. Amazing. Using this analogy of the Internet.... This a hundred times worse than the porn dispute between San Jose and Memphis which I think eventually led to the CDA.(? help me out here) __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 25 21:30:06 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA01512 for dvd-discuss-outgoing; Fri, 25 Aug 2000 21:30:06 -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 VAA01509 for ; Fri, 25 Aug 2000 21:30:06 -0400 Received: from mediaone.net (h0060b03c5b8b.ne.mediaone.net [24.128.18.77]) by chmls06.mediaone.net (8.8.7/8.8.7) with ESMTP id VAA05632 for ; Fri, 25 Aug 2000 21:30:21 -0400 (EDT) Message-ID: <39A71DAE.EEEABBED@mediaone.net> Date: Fri, 25 Aug 2000 21:30:22 -0400 From: Sphere X-Mailer: Mozilla 4.73 [en] (WinNT; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] DVD CCA Opposition to Pavlovich Quash Motion References: <39A70970.6CFFE505@mediaone.net> <200008260022.UAA00505@smtp6.mindspring.com> <2b6eqskb8kjf0jhfbvmo0p31ucgii4pmtk@4ax.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 Ron Gustavson wrote: > > On Fri, 25 Aug 2000 20:14:55 -0400, John Young wrote: > > >Thanks to EFF, we offer DVD CCA's Memorandum of > >Opposition to the Pavlovich Quash Motion, dated August 18: > > > > http://cryptome.org/dvd-v-521-opq.htm (39K) > > > >It opens with this statement: > > > > Defendant Pavlovich is a leader in the so-called "open source" > > movement, which is dedicated to the proposition that material, > > copyrighted or not, should be made available over the Internet > > for free. Acting in concert with like-minded individuals > > Is this not slander? > > Well, I guess we know where Hollywood's coming from. > Too bad they haven't a clue--or a scruple. > > __________no-∞-do__________ With respect to slander the "open source" movement has the same problem which makes shutting down Gnutella next to impossible. Who's being slandered? A class action suit might be interesting, but I'm not sure if you could then turn around and sue a class... -- Sphere. Is DeCSS.c obscene? Why can't I read it? Can knowledge be forbidden? From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 25 21:35:35 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA01566 for dvd-discuss-outgoing; Fri, 25 Aug 2000 21:35:35 -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 VAA01563 for ; Fri, 25 Aug 2000 21:35:34 -0400 Received: from mediaone.net (h0060b03c5b8b.ne.mediaone.net [24.128.18.77]) by chmls06.mediaone.net (8.8.7/8.8.7) with ESMTP id VAA07546 for ; Fri, 25 Aug 2000 21:35:50 -0400 (EDT) Message-ID: <39A71EF6.2FF4977@mediaone.net> Date: Fri, 25 Aug 2000 21:35:50 -0400 From: Sphere X-Mailer: Mozilla 4.73 [en] (WinNT; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] DVD CCA Opposition to Pavlovich Quash Motion References: <39A70970.6CFFE505@mediaone.net> <200008260022.UAA00505@smtp6.mindspring.com> Content-Type: text/plain; charset=iso-8859-1 Content-Transfer-Encoding: 8bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Ron Gustavson wrote: > > | As is often noted, "one who intentionally shoots a bullet into a state > | is as subject to the judicial jurisdiction of [that] state ... as if he had > | actually fired the bullet in the state." See, e.g., Schlussel v. Schlussel, > | 141 20 21 Cal.App.3d 194, 197 (citing Restatement Second of > | Conflict of Laws, § 37). > > Wow. Amazing. Using this analogy of the Internet.... > > This a hundred times worse than the porn dispute between San Jose > and Memphis which I think eventually led to the CDA.(? help me out here) > > __________no-∞-do__________ Don't know about that, but I think the intensionality can be countered by arguing a web site is passive. The reader "leaves" the state in order go to read its' contents. Some of the other stuff I'm reading is over my head... It seems to be saying that just because the people who feel hurt happen to reside in CA they have personal jurisdiction. -- Sphere. Is DeCSS.c obscene? Why can't I read it? Can knowledge be forbidden? From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 25 21:52:05 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA01709 for dvd-discuss-outgoing; Fri, 25 Aug 2000 21:52:05 -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 VAA01706 for ; Fri, 25 Aug 2000 21:52:04 -0400 Message-ID: <20000826015150.8514.qmail@web509.mail.yahoo.com> Received: from [64.81.25.36] by web509.mail.yahoo.com; Fri, 25 Aug 2000 18:51:50 PDT Date: Fri, 25 Aug 2000 18:51:50 -0700 (PDT) From: Bryan Taylor Subject: [dvd-discuss] The US v O'Brien standard To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Now that we have Kaplan's opinion, we are for the first time able to attack rather than defend. Kaplan has established the standard for analysis, US v. O'Brien, so we should take a good strong look at it: U.S. v. O'Brien 391 U.S. 367 (Sup. Ct. 1968) http://caselaw.findlaw.com/cgi-bin/getcase.pl?navby=case&court=us&vol=391&invol=367 Summary: http://bioinformatics.ucsf.edu/bwtaylor/1st_Amendment/content_neutrality.html#US_v_OBrien "When 'speech' and 'nonspeech' elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms." In O'Brien, it was clear: burning your draft card is conduct. There's no analog here. What exactly is the conduct in offering to the public a computer program? The internet is a public forum, placing a literary work such as a computer program in a public forum is 100% speech elements and 0% speech elements. If this is conduct, then so is vibrating your vocal cords, or moving your pencil to create marks. Nor is Kaplan's injuction an 'incidental limitation' since it stifles completely all dissemination of the precise truthful description of the Johansen-Fawcus method for decrypting a DVD. There are no alternative forums. Moreover, it is not clear that there was any Congressional interest in including computer programs under the catch-all "technology". On the contrary, DeCSS was surely legal before the DMCA and 1201(c)(4) says specifically that the new law does not "diminish any rights of free speech or the press for activities using consumer electronics, telecommunications, or computing products." Computer programming and posting of code is much more precisely placed under the bucket of "activities using ... telecommunications, or computing products" than it is under the catch-all "technology". This part clearly was intended to do nothing other than block an O'Brien intermediate scrutiny standard. The heart of O'Brien is the four part test: A government regulation is sufficiently justified (1) if it is within the constitutional power of the Government (2) if it furthers an important or substantial governmental interest (3) if the governmental interest is unrelated to the suppression of free expression (4) if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest. The worst failure is (4) since all of the Constitutionally mandated fair use of encrypted works is sacrificed at the alter of the DMCA. Almost as bad is (3), since it is precisely the content of the truthful communication of a factual method that renders one particular computer file illegal. We can use (1) to air our arguments about the built in limitations of the copyright clause and how the commerce clause cannot circumvent the copyright clause and must also honor fair use. We can use (2) to claim that Congress's attempts to promote security by protecting insecurity will not "further" the reduction in piracy it intends, but rather assure that it persists. From what I read, I think the Court can review Congressional fact-finding and declare it inadequate. Normally courts would defer to Congress, but not when fundamental rights are at stake. This would give us a nice chance to tout the merits of "full disclosure". __________________________________________________ Do You Yahoo!? Yahoo! Mail - Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 25 21:59:26 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA01868 for dvd-discuss-outgoing; Fri, 25 Aug 2000 21:59:26 -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 VAA01865 for ; Fri, 25 Aug 2000 21:59:26 -0400 Received: from mit.edu (h0050da62b39d.ne.mediaone.net [24.147.217.121]) by chmls05.mediaone.net (8.8.7/8.8.7) with ESMTP id VAA08322; Fri, 25 Aug 2000 21:59:42 -0400 (EDT) Message-ID: <39A7250E.27F5C5F2@mit.edu> Date: Fri, 25 Aug 2000 22:01:50 -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] Time Warner engaging in DeCSS linking References: <001901c00eb0$c4dfad00$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: > > What's the legal impact of the following. CNN, a division of Time-Warner > and one of the P's in this lawsuit at the following address: > > http://www.cnn.com/2000/TECH/computing/08/23/decss.part2.idg/index.html > > Is linking to the "Worldwide List of DeCSS Mirrors" > > http://www.zpok.demon.co.uk/decss/ > > which has directly on it's front page a DeCSS.zip download. > > As far as I can see it, one of the P's is doing exactly what they have asked > the Judge for an injunction to stop the D from doing. How can an arguement > of grave injury pass muster when the one of P's is paying it's own employees > to do the self-same injurious act? > > IANAL. Lawyers, any comments? > This link has had quite and interesting day. I posted it to discuss.userland.com, which caused Dave Winer to put it on Scripting News. >From there, it went to Slashdot and Upside... and CNN took down the link. The most chilling part of the story, in my opinion, is found in the Upside article on it. (http://www.upside.com/News/39a6fef00.html) In that article, we learn that _LinuxWorld_ is reconsidering its editorial policy with respect to this link. I can't imagine that going over well with their readership. Remember, LinuxWorld is not owned by an MPAA member. They are owned by IDG, at best a _partner_ of CNN (and, hence, Time Warner). The reason I'm going through the whole story here is that, based on what I saw from some of the cases posted earlier, appeals courts treat First Amendment cases somewhat differently than other cases. Specifically, because of the special nature of the First Amendment, they sometimes reopen the factual record where they would not otherwise do so. If that understanding is correct, is there any way we can get this chain of events into the record at the appellate level? I can't imagine a more convincing demonstration of the "chilling effect" of Kaplan's rulings than this chain of events (especially with regards to linking, and, since Kaplan says linking is just like providing DeCSS directly...). People, including journalists, are starting to monitor how they discuss DeCSS. How much worse can it get? - Ravi Nanavati From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 25 22:05:28 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA02159 for dvd-discuss-outgoing; Fri, 25 Aug 2000 22:05:28 -0400 Received: from mercury.clearway.com (c100.clearway.com [199.103.231.100]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id WAA02156 for ; Fri, 25 Aug 2000 22:05:27 -0400 Received: by c100.clearway.com with Internet Mail Service (5.5.2650.21) id ; Fri, 25 Aug 2000 22:09:02 -0400 Message-ID: From: Leland Ray To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] DVD CCA Opposition to Pavlovich Quash Motion Date: Fri, 25 Aug 2000 22:09:01 -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 Jurisdictional issues are pretty darn tricky, as was shown with the recent attempt to extradite Pinochet. What gets me is just how much the reply assumes facts that are unproven, or are contested at trial. Does the court have to decide its jurisdiction based upon unproven facts? From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 25 22:08:40 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA02248 for dvd-discuss-outgoing; Fri, 25 Aug 2000 22:08:40 -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 WAA02245 for ; Fri, 25 Aug 2000 22:08:39 -0400 Received: from mediaone.net (h0060b03c5b8b.ne.mediaone.net [24.128.18.77]) by chmls06.mediaone.net (8.8.7/8.8.7) with ESMTP id WAA18721 for ; Fri, 25 Aug 2000 22:08:55 -0400 (EDT) Message-ID: <39A726B7.504E9294@mediaone.net> Date: Fri, 25 Aug 2000 22:08:55 -0400 From: Sphere X-Mailer: Mozilla 4.73 [en] (WinNT; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] The US v O'Brien standard References: <20000826015150.8514.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: > > Now that we have Kaplan's opinion, we are for the first time able to > attack rather than defend. Kaplan has established the standard for > analysis, US v. O'Brien, so we should take a good strong look at it: > > U.S. v. O'Brien > 391 U.S. 367 (Sup. Ct. 1968) > http://caselaw.findlaw.com/cgi-bin/getcase.pl?navby=case&court=us&vol=391&invol=367 > Summary: > http://bioinformatics.ucsf.edu/bwtaylor/1st_Amendment/content_neutrality.html#US_v_OBrien > > "When 'speech' and 'nonspeech' elements are combined in the same course > of conduct, a sufficiently important governmental interest in > regulating the nonspeech element can justify incidental limitations on > First Amendment freedoms." > > In O'Brien, it was clear: burning your draft card is conduct. There's > no analog here. What exactly is the conduct in offering to the public a > computer program? The internet is a public forum, placing a literary > work such as a computer program in a public forum is 100% speech > elements and 0% speech elements. If this is conduct, then so is > vibrating your vocal cords, or moving your pencil to create marks. > > Nor is Kaplan's injuction an 'incidental limitation' since it stifles > completely all dissemination of the precise truthful description of the > Johansen-Fawcus method for decrypting a DVD. There are no alternative > forums. > > Moreover, it is not clear that there was any Congressional interest in > including computer programs under the catch-all "technology". On the > contrary, DeCSS was surely legal before the DMCA and 1201(c)(4) says > specifically that the new law does not "diminish any rights of free > speech or the press for activities using consumer electronics, > telecommunications, or computing products." Computer programming and > posting of code is much more precisely placed under the bucket of > "activities using ... telecommunications, or computing products" than > it is under the catch-all "technology". This part clearly was intended > to do nothing other than block an O'Brien intermediate scrutiny > standard. > > The heart of O'Brien is the four part test: > A government regulation is sufficiently justified > (1) if it is within the constitutional power of the Government > (2) if it furthers an important or substantial governmental interest > (3) if the governmental interest is unrelated to the suppression of > free expression > (4) if the incidental restriction on alleged First Amendment freedoms > is no greater than is essential to the furtherance of that interest. > > The worst failure is (4) since all of the Constitutionally mandated > fair use of encrypted works is sacrificed at the alter of the DMCA. > Almost as bad is (3), since it is precisely the content of the truthful > communication of a factual method that renders one particular computer > file illegal. > > We can use (1) to air our arguments about the built in limitations of > the copyright clause and how the commerce clause cannot circumvent the > copyright clause and must also honor fair use. > > We can use (2) to claim that Congress's attempts to promote security by > protecting insecurity will not "further" the reduction in piracy it > intends, but rather assure that it persists. From what I read, I think > the Court can review Congressional fact-finding and declare it > inadequate. Normally courts would defer to Congress, but not when > fundamental rights are at stake. This would give us a nice chance to > tout the merits of "full disclosure". I like this structure, but can't we use (2) to ask exactly what constitutionally permissible interests are being protected, and if they are of such overriding importance that a first amendment right to a free press can be ignored? A right which, I might add, the supreme court declined to override for the Pentagon Papers, or for CIA agency secrets. (You might want to suplement the limitations of the copyright clause with freedom of association concerns...) -- Sphere. Is DeCSS.c obscene? Why can't I read it? Can knowledge be forbidden? From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 25 22:14:09 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA02299 for dvd-discuss-outgoing; Fri, 25 Aug 2000 22:14:09 -0400 Received: from smtp04.primenet.com (smtp04.primenet.com [206.165.6.134]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id WAA02296 for ; Fri, 25 Aug 2000 22:14:08 -0400 Received: (from daemon@localhost) by smtp04.primenet.com (8.9.3/8.9.3) id TAA14401 for ; Fri, 25 Aug 2000 19:12:28 -0700 (MST) Received: from sessions.phx.primenet.com(206.132.239.114), claiming to be "heorot.lumbercartel.com" via SMTP by smtp04.primenet.com, id smtpdAAAabaG6B; Fri Aug 25 19:12:13 2000 Received: from frankenstein.lumbercartel.com (IDENT:dcs@frankenstein.lumbercartel.com [192.168.6.2]) by heorot.lumbercartel.com (8.9.3/8.8.7) with SMTP id TAA02456 for ; Fri, 25 Aug 2000 19:14:04 -0700 From: "D. C. Sessions" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] DVD CCA Opposition to Pavlovich Quash Motion Date: Fri, 25 Aug 2000 19:02:48 -0700 X-Mailer: KMail [version 1.0.29] Content-Type: text/plain References: <39A70970.6CFFE505@mediaone.net> <200008260022.UAA00505@smtp6.mindspring.com> In-Reply-To: MIME-Version: 1.0 Message-Id: <00082519050500.27088@frankenstein.lumbercartel.com> Content-Transfer-Encoding: 8bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Dang. Wish I could find the thing, but about a year ago there was a pretty interesting paper published, titled something like "Personal Jurisdiction and the Internet." I'm pretty sure it was referenced on /. and was hosted at one of the big-name Eastern law schools. Cornell? -- | Engineers solve problems -- it's what we do. | | Do you want to be a problem? | | D. C. Sessions === dcs@lumbercartel.com | From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 25 22:14:00 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA02291 for dvd-discuss-outgoing; Fri, 25 Aug 2000 22:14:00 -0400 Received: from smtp02.primenet.com (smtp02.primenet.com [206.165.6.132]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id WAA02288 for ; Fri, 25 Aug 2000 22:13:58 -0400 Received: (from daemon@localhost) by smtp02.primenet.com (8.9.3/8.9.3) id TAA18198 for ; Fri, 25 Aug 2000 19:12:03 -0700 (MST) Received: from sessions.phx.primenet.com(206.132.239.114), claiming to be "heorot.lumbercartel.com" via SMTP by smtp02.primenet.com, id smtpdAAA.faqBJ; Fri Aug 25 19:11:56 2000 Received: from frankenstein.lumbercartel.com (IDENT:dcs@frankenstein.lumbercartel.com [192.168.6.2]) by heorot.lumbercartel.com (8.9.3/8.8.7) with SMTP id TAA02462 for ; Fri, 25 Aug 2000 19:14:05 -0700 From: "D. C. Sessions" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] DVD CCA Opposition to Pavlovich Quash Motion Date: Fri, 25 Aug 2000 19:11:51 -0700 X-Mailer: KMail [version 1.0.29] Content-Type: text/plain References: <200008260022.UAA00505@smtp6.mindspring.com> In-Reply-To: <200008260022.UAA00505@smtp6.mindspring.com> MIME-Version: 1.0 Message-Id: <00082519135802.27088@frankenstein.lumbercartel.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, 25 Aug 2000, John Young wrote: > Thanks to EFF, we offer DVD CCA's Memorandum of > Opposition to the Pavlovich Quash Motion, dated August 18: > > http://cryptome.org/dvd-v-521-opq.htm (39K) > > It opens with this statement: > > Defendant Pavlovich is a leader in the so-called "open source" > movement, which is dedicated to the proposition that material, > copyrighted or not, should be made available over the Internet > for free. Acting in concert with like-minded individuals > throughout the world, Pavlovich engaged in purposeful, > unlawful conduct directed toward substantial business > enterprises in the State of California. This sure reads like Pavlovich is on trial for affiliation, doesn't it? -- | Engineers solve problems -- it's what we do. | | Do you want to be a problem? | | D. C. Sessions === dcs@lumbercartel.com | From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 25 22:14:33 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA02307 for dvd-discuss-outgoing; Fri, 25 Aug 2000 22:14:33 -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 WAA02304 for ; Fri, 25 Aug 2000 22:14:32 -0400 Received: from mediaone.net (h0060b03c5b8b.ne.mediaone.net [24.128.18.77]) by chmls06.mediaone.net (8.8.7/8.8.7) with ESMTP id WAA20453 for ; Fri, 25 Aug 2000 22:14:47 -0400 (EDT) Message-ID: <39A72818.7DABCAA1@mediaone.net> Date: Fri, 25 Aug 2000 22:14:48 -0400 From: Sphere X-Mailer: Mozilla 4.73 [en] (WinNT; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Time Warner engaging in DeCSS linking References: <001901c00eb0$c4dfad00$87ce0593@ia.nsc.com> <39A7250E.27F5C5F2@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: > > John Zulauf wrote: > > > > What's the legal impact of the following. CNN, a division of Time-Warner > > and one of the P's in this lawsuit at the following address: > > > > http://www.cnn.com/2000/TECH/computing/08/23/decss.part2.idg/index.html > > > > Is linking to the "Worldwide List of DeCSS Mirrors" > > > > http://www.zpok.demon.co.uk/decss/ > > > > which has directly on it's front page a DeCSS.zip download. > > > > As far as I can see it, one of the P's is doing exactly what they have asked > > the Judge for an injunction to stop the D from doing. How can an arguement > > of grave injury pass muster when the one of P's is paying it's own employees > > to do the self-same injurious act? > > > > IANAL. Lawyers, any comments? > > > > This link has had quite and interesting day. > I posted it to discuss.userland.com, which > caused Dave Winer to put it on Scripting News. > >From there, it went to Slashdot and Upside... > and CNN took down the link. > > The most chilling part of the story, in my opinion, > is found in the Upside article on it. > (http://www.upside.com/News/39a6fef00.html) > > In that article, we learn that _LinuxWorld_ is > reconsidering its editorial policy with respect > to this link. I can't imagine that going over well > with their readership. Remember, LinuxWorld is not > owned by an MPAA member. They are owned by IDG, at > best a _partner_ of CNN (and, hence, Time Warner). > > The reason I'm going through the whole story here > is that, based on what I saw from some of the cases > posted earlier, appeals courts treat First Amendment > cases somewhat differently than other cases. Specifically, > because of the special nature of the First Amendment, > they sometimes reopen the factual record where they would > not otherwise do so. If that understanding is correct, is > there any way we can get this chain of events into the > record at the appellate level? I can't imagine a more > convincing demonstration of the "chilling effect" of > Kaplan's rulings than this chain of events (especially > with regards to linking, and, since Kaplan says linking > is just like providing DeCSS directly...). People, > including journalists, are starting to monitor how > they discuss DeCSS. How much worse can it get? > > - Ravi Nanavati You can take it to court yourself -- got a lot of money? The chilling effect is not just upon Linux World, it is upon you as a reader. Don't think about just one end of Free Speech. Free Speech means being free to hear, not just free to say. That's why I wrote the .sig I'm using at the moment. -- Sphere. Is DeCSS.c obscene? Why can't I read it? Can knowledge be forbidden? From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 25 22:51:55 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA02479 for dvd-discuss-outgoing; Fri, 25 Aug 2000 22:51:55 -0400 Received: from smtp03.primenet.com (smtp03.primenet.com [206.165.6.133]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id WAA02476 for ; Fri, 25 Aug 2000 22:51:51 -0400 Received: (from daemon@localhost) by smtp03.primenet.com (8.9.3/8.9.3) id TAA02312 for ; Fri, 25 Aug 2000 19:51:00 -0700 (MST) Received: from sessions.phx.primenet.com(206.132.239.114), claiming to be "heorot.lumbercartel.com" via SMTP by smtp03.primenet.com, id smtpdAAAWUa4ye; Fri Aug 25 19:50:50 2000 Received: from frankenstein.lumbercartel.com (IDENT:dcs@frankenstein.lumbercartel.com [192.168.6.2]) by heorot.lumbercartel.com (8.9.3/8.8.7) with SMTP id TAA02543 for ; Fri, 25 Aug 2000 19:51:52 -0700 From: "D. C. Sessions" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] DVD CCA Opposition to Pavlovich Quash Motion Date: Fri, 25 Aug 2000 19:50:35 -0700 X-Mailer: KMail [version 1.0.29] Content-Type: text/plain References: <39A70970.6CFFE505@mediaone.net> <00082519050500.27088@frankenstein.lumbercartel.com> In-Reply-To: <00082519050500.27088@frankenstein.lumbercartel.com> MIME-Version: 1.0 Message-Id: <00082519514700.27142@frankenstein.lumbercartel.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, 25 Aug 2000, D. C. Sessions wrote: > Dang. Wish I could find the thing, but about a year ago there was a > pretty interesting paper published, titled something like "Personal > Jurisdiction and the Internet." I'm pretty sure it was referenced on > /. and was hosted at one of the big-name Eastern law schools. > Cornell? Didn't find the one I was looking for but did find a site with an interesting collection of links: http://www.richmond.edu/~jolt/v4i3/tamayo_related.html Hope posting that doesn't get me in trouble with the Court :-) -- | Engineers solve problems -- it's what we do. | | Do you want to be a problem? | | D. C. Sessions === dcs@lumbercartel.com | From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 25 22:54:16 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA02597 for dvd-discuss-outgoing; Fri, 25 Aug 2000 22:54:16 -0400 Received: from web111.yahoomail.com (web111.yahoomail.com [205.180.60.81]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id WAA02594 for ; Fri, 25 Aug 2000 22:54:15 -0400 Received: (qmail 28976 invoked by uid 60001); 26 Aug 2000 02:54:31 -0000 Message-ID: <20000826025431.28975.qmail@web111.yahoomail.com> Received: from [128.122.253.144] by web111.yahoomail.com; Fri, 25 Aug 2000 19:54:31 PDT Date: Fri, 25 Aug 2000 19:54:31 -0700 (PDT) From: "Tuyet A. Ngoc Tran" Subject: Re: [dvd-discuss] Time Warner engaging in DeCSS linking To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-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 Wired News: http://www.wired.com/news/print/0,1294,38360,00.html Only News That's Fit to Link by Declan McCullagh 3:00 a.m. Aug. 23, 2000 PDT ------------------- > John Zulauf wrote: > > > > What's the legal impact of the following. CNN, a > division of Time-Warner > > and one of the P's in this lawsuit at the > following address: > >http://www.cnn.com/2000/TECH/computing/08/23/decss.part2.idg/index.html > > > > Is linking to the "Worldwide List of DeCSS > Mirrors" > > > > http://www.zpok.demon.co.uk/decss/ > > > > which has directly on it's front page a DeCSS.zip > download. > > > > As far as I can see it, one of the P's is doing > exactly what they have asked > > the Judge for an injunction to stop the D from > doing. How can an arguement > > of grave injury pass muster when the one of P's is > paying it's own employees > > to do the self-same injurious act? > > > > IANAL. Lawyers, any comments? > > - __________________________________________________ Do You Yahoo!? Yahoo! Mail - Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 25 22:55:14 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA02634 for dvd-discuss-outgoing; Fri, 25 Aug 2000 22:55:14 -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 WAA02631 for ; Fri, 25 Aug 2000 22:55:13 -0400 Received: from ip200.bedford2.ma.pub-ip.psi.net ([38.32.10.200]) by relay20.smtp.psi.net with smtp (Exim 3.13 #3) id 13SW81-0003WY-00 for dvd-discuss@eon.law.harvard.edu; Fri, 25 Aug 2000 22:55:29 -0400 From: Ron Gustavson To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Weil, Gotshal rant Date: Fri, 25 Aug 2000 22:49:03 -0400 Message-ID: <8gaeqskb3rjjgri7f2orlp1h99r293pl09@4ax.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 WAA02632 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu | At the time he misappropriated plaintiffs trade secrets, he knew the | 10 motion picture industry was centered in California (Pavlovich Aug. | Depo., pp. 29-30); Which ten is this? (BTW it must be a typo, no?) What criteria apply? Number of titles/year? (better go to Delhi) broad distribution? Delhi again--or Hong Kong. Sheer hubris? Well, OK. Hollywood. | At the time he misappropriated plaintiffs trade secrets, he knew the | 12 computer technology industry was centered in California (Pavlovich | Aug. Depo., pp. 41-44); Another slur in baby talk: Ba Ba dip di dip...Ba Ba dip di dip.. (I never heard of the #12 computer; does Weil, Gotshal make associates do all the work?) | DVD discs are instruments of the motion picture industry in that their | purpose is to deliver motion picture content to their purchasers 14 | Pavlovich Aug. Depo., pp. 28); We don't know what their purpose is. But they are published products. It could be said that motion picture content can only be delivered at a motion picture theater. DVDs are another market product entirely. more to come... __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 25 22:56:55 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA02683 for dvd-discuss-outgoing; Fri, 25 Aug 2000 22:56:55 -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 WAA02680 for ; Fri, 25 Aug 2000 22:56:54 -0400 Message-ID: <20000826025640.26814.qmail@web510.mail.yahoo.com> Received: from [64.81.25.36] by web510.mail.yahoo.com; Fri, 25 Aug 2000 19:56:40 PDT Date: Fri, 25 Aug 2000 19:56:40 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] DVD CCA Opposition to Pavlovich Quash Motion To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --- "D. C. Sessions" wrote: > Dang. Wish I could find the thing, but about a year ago there was a > pretty interesting paper published, titled something like "Personal > Jurisdiction and the Internet." I'm pretty sure it was referenced on > /. and was hosted at one of the big-name Eastern law schools. > Cornell? Here's a pretty good one. My quick impression: like most issues in these cases, it's not settled law. http://www.brobeck.com/docs/2000features/2000_may.html Question for the lawyers. What happens if the court decides that Pavlovich is under their jurisdiction and he then faxes them a photocopy of his butt? How could CA enforce it's state court rulings in TX? __________________________________________________ Do You Yahoo!? Yahoo! Mail - Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 25 22:58:18 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA02726 for dvd-discuss-outgoing; Fri, 25 Aug 2000 22:58:18 -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 WAA02723 for ; Fri, 25 Aug 2000 22:58:17 -0400 Received: from ppp.anonymizer.com (c01-191.015.popsite.net [64.24.72.191]) by cyberpass.net (8.8.8/8.7.3) with ESMTP id UAA25162 for ; Fri, 25 Aug 2000 20:00:39 -0700 (PDT) Message-Id: <4.3.2.7.2.20000825193501.00ad6100@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, 25 Aug 2000 19:58:28 -0700 To: dvd-discuss@eon.law.harvard.edu From: "James S. Tyre" Subject: [dvd-discuss] Appellate Review Standards [Was Re: Time Warner engaging in DeCSS linking] In-Reply-To: <39A7250E.27F5C5F2@mit.edu> References: <001901c00eb0$c4dfad00$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 10:01 PM 8/25/2000 -0400, Ravi Nanavati wrote: >The most chilling part of the story, in my opinion, >is found in the Upside article on it. >(http://www.upside.com/News/39a6fef00.html) > >In that article, we learn that _LinuxWorld_ is >reconsidering its editorial policy with respect >to this link. I can't imagine that going over well >with their readership. Remember, LinuxWorld is not >owned by an MPAA member. They are owned by IDG, at >best a _partner_ of CNN (and, hence, Time Warner). > >The reason I'm going through the whole story here >is that, based on what I saw from some of the cases >posted earlier, appeals courts treat First Amendment >cases somewhat differently than other cases. Specifically, >because of the special nature of the First Amendment, >they sometimes reopen the factual record where they would >not otherwise do so. If that understanding is correct, Generally speaking, it is not correct. (As a lawyer, I am required to say that there are exceptions to every rule, but the exceptions are not nearly so broad as "First Amendment cases".) First premise, in all cases, including First Amendment cases: if the fact is not in the trial court record (admitted into evidence, or offered but wrongly excluded) it does not exist in the appellate court's world. Second: In "normal" cases, the appellate court will use what is called the substantial evidence rule in reviewing factual findings made by the trier of fact (Kaplan here, the jury in a jury trial). "Substantial" does *not* mean what many laypeople might think, it means only that if there is *anything* of substance to support the factual finding, the appellate court will not substitute its own judgment, even if, were it the trier of fact, it would have found the fact to be different. Assuming one can weigh the evidence (which one really can't) if 80% of the weight supports one interpretation, 20% another, that 20% is "substantial" within the meaning of the substantial evidence rule. What you are referring to is that in First Amendment cases (and only as applied to some facts, not all), the appellate court will review the facts de novo, meaning that it will exercise its own independent judgment about the facts, unconstrained by the substantial evidence rule. So you are right in that First Amendment cases do get heightened appellate scrutiny, but that scrutiny still is limited to facts in the trial record, not things entirely extrinsic to it. -------------------------------------------------------------------- James S. Tyre mailto:jstyre@jstyre.com 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 Aug 25 23:04:16 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA02781 for dvd-discuss-outgoing; Fri, 25 Aug 2000 23:04:16 -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 XAA02778 for ; Fri, 25 Aug 2000 23:04:15 -0400 Received: from mit.edu (h0050da62b39d.ne.mediaone.net [24.147.217.121]) by chmls06.mediaone.net (8.8.7/8.8.7) with ESMTP id XAA05988; Fri, 25 Aug 2000 23:04:31 -0400 (EDT) Message-ID: <39A7343F.4FA1E55B@mit.edu> Date: Fri, 25 Aug 2000 23:06:39 -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] Appellate Review Standards [Was Re: Time Warner engaging inDeCSS linking] References: <001901c00eb0$c4dfad00$87ce0593@ia.nsc.com> <4.3.2.7.2.20000825193501.00ad6100@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 10:01 PM 8/25/2000 -0400, Ravi Nanavati wrote: > > >The most chilling part of the story, in my opinion, > >is found in the Upside article on it. > >(http://www.upside.com/News/39a6fef00.html) > > > >In that article, we learn that _LinuxWorld_ is > >reconsidering its editorial policy with respect > >to this link. I can't imagine that going over well > >with their readership. Remember, LinuxWorld is not > >owned by an MPAA member. They are owned by IDG, at > >best a _partner_ of CNN (and, hence, Time Warner). > > > >The reason I'm going through the whole story here > >is that, based on what I saw from some of the cases > >posted earlier, appeals courts treat First Amendment > >cases somewhat differently than other cases. Specifically, > >because of the special nature of the First Amendment, > >they sometimes reopen the factual record where they would > >not otherwise do so. If that understanding is correct, > > Generally speaking, it is not correct. (As a lawyer, I am required to say > that there are exceptions to every rule, but the exceptions are not nearly > so broad as "First Amendment cases".) Thanks for the clarification. Oh well, at least it is ammunition for the next case. - Ravi Nanavati From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 25 23:15:15 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA02865 for dvd-discuss-outgoing; Fri, 25 Aug 2000 23:15:15 -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 XAA02862 for ; Fri, 25 Aug 2000 23:15:14 -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 XAA06345 for ; Fri, 25 Aug 2000 23:15:31 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id XAA12011; Fri, 25 Aug 2000 23:15:31 -0400 (EDT) Date: Fri, 25 Aug 2000 23:15:31 -0400 (EDT) Message-Id: <200008260315.XAA12011@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Appellate Review Standards [Was Re: Time Warner engaging in DeCSS linking] In-Reply-To: <4.3.2.7.2.20000825193501.00ad6100@127.0.0.1> References: <001901c00eb0$c4dfad00$87ce0593@ia.nsc.com> <39A7250E.27F5C5F2@mit.edu> <4.3.2.7.2.20000825193501.00ad6100@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: > What you are referring to is that in First Amendment cases (and only as > applied to some facts, not all), the appellate court will review the facts > de novo, meaning that it will exercise its own independent judgment about > the facts, unconstrained by the substantial evidence rule. How far does the relaxation of the substantial evidence rule extend? I'm asking because Kaplan drew conclusions about a variety of matters, e.g., that Johansen wasn't trying to help build a Linux player, which we here would obviously love to revisit, and it would be helpful to know which are real possibilities. (Of course, the Johansen business is a peculiar case --- was there *any* evidence to support Kaplan's conclusion, other than what amounted to an unsubstantiated guess on the part of one of the plaintiffs' expert witnesses?) rst From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 25 23:38:31 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA03143 for dvd-discuss-outgoing; Fri, 25 Aug 2000 23:38:31 -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 XAA03140 for ; Fri, 25 Aug 2000 23:38:29 -0400 Received: from ppp.anonymizer.com (c01-191.015.popsite.net [64.24.72.191]) by cyberpass.net (8.8.8/8.7.3) with ESMTP id UAA01436 for ; Fri, 25 Aug 2000 20:40:52 -0700 (PDT) Message-Id: <4.3.2.7.2.20000825202350.04c6a670@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, 25 Aug 2000 20:38:41 -0700 To: dvd-discuss@eon.law.harvard.edu From: "James S. Tyre" Subject: Re: [dvd-discuss] Appellate Review Standards [Was Re: Time Warner engaging in DeCSS linking] In-Reply-To: <200008260315.XAA12011@soggy-fibers.ai.mit.edu> References: <4.3.2.7.2.20000825193501.00ad6100@127.0.0.1> <001901c00eb0$c4dfad00$87ce0593@ia.nsc.com> <39A7250E.27F5C5F2@mit.edu> <4.3.2.7.2.20000825193501.00ad6100@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 11:15 PM 8/25/2000 -0400, Robert S. Thau wrote: >James S. Tyre writes: > > What you are referring to is that in First Amendment cases (and only as > > applied to some facts, not all), the appellate court will review the > facts > > de novo, meaning that it will exercise its own independent judgment about > > the facts, unconstrained by the substantial evidence rule. > >How far does the relaxation of the substantial evidence rule extend? Essentially speaking, the de novo standard applies to facts which go to the core of the First Amendment issue, to which not all facts in a 1A case go. Example: suppose it is a case for alleged slander (oral defamation), where W (witness) supposedly heard the Defendant (D) utter the alleged slander. W is asked precisely what he heard D say. That is at the core, since the precise words uttered by D may determine whether what D said is slanderous. But W also is asked where he heard this, what time of day it was, what D was wearing, what W was wearing, and so forth - the idea being that other witnesses will contradict W on all of these, calling into question the quality of W's memory (or honesty). The first will be reviewed de novo, the rest according to the substantial evidence test. >I'm asking because Kaplan drew conclusions about a variety of matters, >e.g., that Johansen wasn't trying to help build a Linux player, which >we here would obviously love to revisit, and it would be helpful to >know which are real possibilities. (Of course, the Johansen business >is a peculiar case --- was there *any* evidence to support Kaplan's >conclusion, other than what amounted to an unsubstantiated guess on >the part of one of the plaintiffs' expert witnesses?) The interesting thing about the Johansen business is that it might fail appellate review even if the substantial evidence test is applied. He did it in Windows, but he explained why, and to my recollection, there is *no* substantial evidence to the contrary. -------------------------------------------------------------------- James S. Tyre mailto:jstyre@jstyre.com 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 Aug 25 23:43:42 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA03380 for dvd-discuss-outgoing; Fri, 25 Aug 2000 23:43:42 -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 XAA03377 for ; Fri, 25 Aug 2000 23:43:41 -0400 Received: by aero.org id <17122-3>; Fri, 25 Aug 2000 20:43:53 -0700 Received: from mhultra.aero.org(130.221.88.102) via SMTP by aero.org, id smtpdBAAa29344; Fri Aug 25 20:43:46 2000 Received: from ladir01.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Fri, 25 Aug 2000 20:43:10 -0700 Subject: Re: [dvd-discuss] Time Warner engaging in DeCSS linking To: dvd-discuss@eon.law.harvard.edu X-Mailer: Lotus Notes Release 5.0.3 March 21, 2000 Message-Id: From: Michael.A.Rolenz@aero.org X-MIMETrack: Serialize by Router on ladir01/AeroNet/Aerospace/US(Release 5.0.3 |March 21, 2000) at 08/25/2000 08:43:09 PM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Date: Fri, 25 Aug 2000 20:43:50 -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Well IANAL...but in a jointly and separate liability, the defendant can "ease" his burden by filing suit against others who have done the same thing....I'd say, that the Ds should now file suit against CNN and their parent company to recover their damages ....I doubt that Judge Kaplan would be amused but then Jack Valenti acts like an ass in public and gets press time...maybe CNN's competitor will get some ratings...Now I don't know about the deep pockets laws in NY but the Ps may wind up paying all of it..... From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 25 23:44:59 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA03424 for dvd-discuss-outgoing; Fri, 25 Aug 2000 23:44:59 -0400 Received: from smtp04.primenet.com (smtp04.primenet.com [206.165.6.134]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id XAA03421 for ; Fri, 25 Aug 2000 23:44:57 -0400 Received: (from daemon@localhost) by smtp04.primenet.com (8.9.3/8.9.3) id UAA16512 for ; Fri, 25 Aug 2000 20:43:18 -0700 (MST) Received: from sessions.phx.primenet.com(206.132.239.114), claiming to be "heorot.lumbercartel.com" via SMTP by smtp04.primenet.com, id smtpdAAA0Say.F; Fri Aug 25 20:43:03 2000 Received: from frankenstein.lumbercartel.com (IDENT:dcs@frankenstein.lumbercartel.com [192.168.6.2]) by heorot.lumbercartel.com (8.9.3/8.8.7) with SMTP id UAA02655 for ; Fri, 25 Aug 2000 20:44:54 -0700 From: "D. C. Sessions" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Appellate Review Standards [Was Re: Time Warner engaging in DeCSS linking] Date: Fri, 25 Aug 2000 20:40:07 -0700 X-Mailer: KMail [version 1.0.29] Content-Type: text/plain References: <001901c00eb0$c4dfad00$87ce0593@ia.nsc.com> <4.3.2.7.2.20000825193501.00ad6100@127.0.0.1> <200008260315.XAA12011@soggy-fibers.ai.mit.edu> In-Reply-To: <200008260315.XAA12011@soggy-fibers.ai.mit.edu> MIME-Version: 1.0 Message-Id: <00082520410700.27171@frankenstein.lumbercartel.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, 25 Aug 2000, Robert S. Thau wrote: > James S. Tyre writes: > > What you are referring to is that in First Amendment cases (and only as > > applied to some facts, not all), the appellate court will review the facts > > de novo, meaning that it will exercise its own independent judgment about > > the facts, unconstrained by the substantial evidence rule. > > How far does the relaxation of the substantial evidence rule extend? > > I'm asking because Kaplan drew conclusions about a variety of matters, > e.g., that Johansen wasn't trying to help build a Linux player, which > we here would obviously love to revisit, and it would be helpful to > know which are real possibilities. (Of course, the Johansen business > is a peculiar case --- was there *any* evidence to support Kaplan's > conclusion, other than what amounted to an unsubstantiated guess on > the part of one of the plaintiffs' expert witnesses?) Actually, Kaplan seems to have relied extensively on hearsay not presented in court at all. There's a lot of "well known" and "widely known" stuff in there. -- | Engineers solve problems -- it's what we do. | | Do you want to be a problem? | | D. C. Sessions === dcs@lumbercartel.com | From dvd-discuss-owner@eon.law.harvard.edu Fri Aug 25 23:50:09 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA03467 for dvd-discuss-outgoing; Fri, 25 Aug 2000 23:50:09 -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 XAA03464 for ; Fri, 25 Aug 2000 23:50:09 -0400 Received: from mediaone.net (h0060b03c5b8b.ne.mediaone.net [24.128.18.77]) by chmls05.mediaone.net (8.8.7/8.8.7) with ESMTP id XAA12076 for ; Fri, 25 Aug 2000 23:50:25 -0400 (EDT) Message-ID: <39A73E81.C913D5B5@mediaone.net> Date: Fri, 25 Aug 2000 23:50:25 -0400 From: Sphere X-Mailer: Mozilla 4.73 [en] (WinNT; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] DVD CCA Opposition to Pavlovich Quash Motion References: <20000826025640.26814.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: > > --- "D. C. Sessions" wrote: > > Dang. Wish I could find the thing, but about a year ago there was a > > pretty interesting paper published, titled something like "Personal > > Jurisdiction and the Internet." I'm pretty sure it was referenced on > > /. and was hosted at one of the big-name Eastern law schools. > > Cornell? > > Here's a pretty good one. My quick impression: like most issues in > these cases, it's not settled law. > > http://www.brobeck.com/docs/2000features/2000_may.html > > Question for the lawyers. What happens if the court decides that > Pavlovich is under their jurisdiction and he then faxes them a > photocopy of his butt? How could CA enforce it's state court rulings in > TX? Not settled, but to the extent I understood the plaintiffs' claims, the trend is against them. I haven't visited Pavlovich's web page. Is it "interactive"? The fact just about everything I'm reading on this is commercial leads me to believe he has a stronger than average claim... If he isn't doing business at all on the Web then he isn't doing business with CA. -- Sphere. Is DeCSS.c obscene? Why can't I read it? Can knowledge be forbidden? From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 26 00:01:06 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA03579 for dvd-discuss-outgoing; Sat, 26 Aug 2000 00:01:06 -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 AAA03576 for ; Sat, 26 Aug 2000 00:01:03 -0400 Received: from mit.edu (h0050da62b39d.ne.mediaone.net [24.147.217.121]) by chmls05.mediaone.net (8.8.7/8.8.7) with ESMTP id AAA14397; Sat, 26 Aug 2000 00:01:20 -0400 (EDT) Message-ID: <39A7418F.BA877462@mit.edu> Date: Sat, 26 Aug 2000 00:03:27 -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] Appellate Review Standards [Was Re: TimeWarner engaging in DeCSS linking] References: <4.3.2.7.2.20000825193501.00ad6100@127.0.0.1> <001901c00eb0$c4dfad00$87ce0593@ia.nsc.com> <39A7250E.27F5C5F2@mit.edu> <4.3.2.7.2.20000825193501.00ad6100@127.0.0.1> <4.3.2.7.2.20000825202350.04c6a670@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: > The interesting thing about the Johansen business is that it might fail > appellate review even if the substantial evidence test is applied. He did > it in Windows, but he explained why, and to my recollection, there is *no* > substantial evidence to the contrary. In a footnote, Kaplan says: "Substantial questions have been raised both at trial and elsewhere as to the veracity of Johansen's clain. See Ex. CS at S10006 ("Our analysis indicates that the primary technical breakthroughs were developed outside of the Linux development groups."). Not knowing what Ex. CS actually is (do we have/can we get a list of exhibits to cross-reference the opinion with?), I'm not sure of the context, but Kaplan seems to be using the some questioning of Johansen's association with Linux to disbelieve everything Johansen says. If I'm understanding the "substantial evidence" test correctly, he can do that. That is, Kaplan thinks there is "substantial evidence" Johansen is a liar, and he can use that to avoid dealing with Johansen's testimony. On the other hand, the sentence quoted doesn't really dispute Johansen's claim, unless you have a completely broken idea about how open-source development actually works. While there are "Linux development groups" one of the points of bazaar-style open-source is that people can contribute to, join and/or leave these groups whenever they feel like, so you can build mountains with many small contributions. Kaplan doesn't dispute that the "technical breakthroughs" went through Johansen to "Linux development groups", and Johansen explained the non-open-source-traditional aspects of DeCSS in his testimony, so ... If we have enough in the trial record about how open-source development works, I think we can get this reversed. It's just a two-step process: 1) Show that Kaplan's inference about Johansen's connection to Linux has no basis because of how open-source development operates. 2) Use that to show that Kaplan doesn't have grounds to discredit Johansen's testimony. Is this on the right track? - Ravi Nanavati From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 26 00:06:10 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA03703 for dvd-discuss-outgoing; Sat, 26 Aug 2000 00:06:10 -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 AAA03699 for ; Sat, 26 Aug 2000 00:06:09 -0400 Received: from mediaone.net (h0060b03c5b8b.ne.mediaone.net [24.128.18.77]) by chmls05.mediaone.net (8.8.7/8.8.7) with ESMTP id AAA15513 for ; Sat, 26 Aug 2000 00:06:25 -0400 (EDT) Message-ID: <39A74241.51D33C0C@mediaone.net> Date: Sat, 26 Aug 2000 00:06:25 -0400 From: Sphere X-Mailer: Mozilla 4.73 [en] (WinNT; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss Subject: [dvd-discuss] Open Source Vs. MPAA Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Given the big bucks commercial attack upon the just plain folks open source community, we ought to be able to develope some populist sympathy here... I've been wondering. How much of their argument can be turned aside simply by pointing out that they are a commercial enterprise and we are not? Corporations are chartered by government, and as such at least some of the restriction upon government should "rub off" upon the corporation. Congress and the states cannot make law by "treaty" which they cannot make otherwise. Even if this argument isn't going to "cut it" in court, it will have weight in the court of public opinion. -- Sphere. Is DeCSS.c obscene? Why can't I read it? Can knowledge be forbidden? From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 26 00:13:16 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA03993 for dvd-discuss-outgoing; Sat, 26 Aug 2000 00:13:16 -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 AAA03990 for ; Sat, 26 Aug 2000 00:13:16 -0400 Received: from 216-164-137-4.s258.tnt4.lnhva.md.dialup.rcn.com ([216.164.137.4]) by smtp02.mrf.mail.rcn.net with esmtp (Exim 3.15 #2) id 13SXLX-0004V0-00 for dvd-discuss@eon.law.harvard.edu; Sat, 26 Aug 2000 00:13:32 -0400 Date: Sat, 26 Aug 2000 00:13:15 EDT From: Jeremy Erwin To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] DVD CCA Opposition to Pavlovich Quash Motion 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 Fri, 25 Aug 2000, Sphere wrote: > I haven't visited Pavlovich's web page. Is it > "interactive"? The fact just about everything > I'm reading on this is commercial leads me to > believe he has a stronger than average claim... > If he isn't doing business at all on the Web > then he isn't doing business with CA. Well, livid does host mailing list arhives, there's a interface to cvs, and quite a number of things that might be termed "interactive." Mpav's site is at http://www.linuxvideo.org From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 26 00:21:34 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA04249 for dvd-discuss-outgoing; Sat, 26 Aug 2000 00:21:34 -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 AAA04246 for ; Sat, 26 Aug 2000 00:21:33 -0400 Message-ID: <20000826042120.23209.qmail@web509.mail.yahoo.com> Received: from [64.81.25.36] by web509.mail.yahoo.com; Fri, 25 Aug 2000 21:21:20 PDT Date: Fri, 25 Aug 2000 21:21:20 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] Appellate Review Standards [Was Re: Time Warner engaging in DeCSS linking] To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-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: > > [...] Of course, the Johansen business > >is a peculiar case --- was there *any* evidence to support Kaplan's > >conclusion, other than what amounted to an unsubstantiated guess on > >the part of one of the plaintiffs' expert witnesses?) > > The interesting thing about the Johansen business is that it might > fail appellate review even if the substantial evidence test > is applied. He did it in Windows, but he explained why, and to > my recollection, there is *no* substantial evidence to the > contrary. Can you explain what you mean a little bit more? I don't understand how the appeals court would apply the test. Forgive me for being a blockhead. A while back I posted a comment that maybe Kaplan had "abused his discretion" as a fact-finder on this point. Maybe this is worth bringing up in the recusal argument, because it shows actual bias beyond just how he ruled. As I see it, Kaplan is living in his own little fantasy world on this one: Johansen testifies he did it for Linux and how the UDF thing works, they put the LiViD logs in evidence which corroborate, the MPAA's leading questions even acknowledge programming ideas going back and forth between Johansen and Fawcus, Pavlovich testifies LiViD was advanced specifically by DeCSS and even offers to demonstrate (!) the results, Kaplan says "No", but then ignores all of it and creates his own version of the truth that Johansen had no linux motivation at all. Does that smack of bias to you? __________________________________________________ Do You Yahoo!? Yahoo! Mail - Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 26 00:31:44 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA04395 for dvd-discuss-outgoing; Sat, 26 Aug 2000 00:31:44 -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 AAA04392 for ; Sat, 26 Aug 2000 00:31:43 -0400 Received: from ppp.anonymizer.com (c01-191.015.popsite.net [64.24.72.191]) by cyberpass.net (8.8.8/8.7.3) with ESMTP id VAA08554; Fri, 25 Aug 2000 21:34:05 -0700 (PDT) Message-Id: <4.3.2.7.2.20000825212620.00a90e20@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, 25 Aug 2000 21:31:55 -0700 To: dvd-discuss@eon.law.harvard.edu, dvd-discuss@eon.law.harvard.edu From: "James S. Tyre" Subject: Re: [dvd-discuss] DVD CCA Opposition to Pavlovich Quash Motion In-Reply-To: <2b6eqskb8kjf0jhfbvmo0p31ucgii4pmtk@4ax.com> References: <200008260022.UAA00505@smtp6.mindspring.com> <39A70970.6CFFE505@mediaone.net> <200008260022.UAA00505@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 09:13 PM 8/25/2000 -0400, Ron Gustavson wrote: >On Fri, 25 Aug 2000 20:14:55 -0400, John Young wrote: > > >Thanks to EFF, we offer DVD CCA's Memorandum of > >Opposition to the Pavlovich Quash Motion, dated August 18: > > > > http://cryptome.org/dvd-v-521-opq.htm (39K) > > > >It opens with this statement: > > > > Defendant Pavlovich is a leader in the so-called "open source" > > movement, which is dedicated to the proposition that material, > > copyrighted or not, should be made available over the Internet > > for free. Acting in concert with like-minded individuals > >Is this not slander? No. California Civil Code Section 47: 47. A privileged publication or broadcast is one made: (a) In the proper discharge of an official duty. (b) In any (1) legislative proceeding, (2) judicial proceeding, (3) in any other official proceeding authorized by law, or (4) in the initiation or course of any other proceeding authorized by law and reviewable pursuant to Chapter 2 (commencing with Section 1084) of Title 1 of Part 3 of the Code of Civil Procedure, except as follows: (irrelevant exceptions snipped.) These are absolute privileges, not conditional or qualified ones. (For technical clarity, it would be libel if actionable, not slander. Libel is written defamation, slander is oral defamation. But it ain't actionable, period.) -------------------------------------------------------------------- James S. Tyre mailto:jstyre@jstyre.com 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 Aug 26 00:34:23 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA04514 for dvd-discuss-outgoing; Sat, 26 Aug 2000 00:34:23 -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 AAA04511 for ; Sat, 26 Aug 2000 00:34:22 -0400 Received: from mit.edu (h0050da62b39d.ne.mediaone.net [24.147.217.121]) by chmls05.mediaone.net (8.8.7/8.8.7) with ESMTP id AAA21170; Sat, 26 Aug 2000 00:34:39 -0400 (EDT) Message-ID: <39A7495F.34B73F58@mit.edu> Date: Sat, 26 Aug 2000 00:36:47 -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] Appellate Review Standards [Was Re: Time Warner engaging in DeCSS linking] References: <20000826042120.23209.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: > > --- "James S. Tyre" wrote: > > > [...] Of course, the Johansen business > > >is a peculiar case --- was there *any* evidence to support Kaplan's > > >conclusion, other than what amounted to an unsubstantiated guess on > > >the part of one of the plaintiffs' expert witnesses?) > > > > The interesting thing about the Johansen business is that it might > > fail appellate review even if the substantial evidence test > > is applied. He did it in Windows, but he explained why, and to > > my recollection, there is *no* substantial evidence to the > > contrary. > > Can you explain what you mean a little bit more? I don't understand how > the appeals court would apply the test. Forgive me for being a > blockhead. > > A while back I posted a comment that maybe Kaplan had "abused his > discretion" as a fact-finder on this point. Maybe this is worth > bringing up in the recusal argument, because it shows actual bias > beyond just how he ruled. > > As I see it, Kaplan is living in his own little fantasy world on this > one: Johansen testifies he did it for Linux and how the UDF thing > works, they put the LiViD logs in evidence which corroborate, the > MPAA's leading questions even acknowledge programming ideas going back > and forth between Johansen and Fawcus, Pavlovich testifies LiViD was > advanced specifically by DeCSS and even offers to demonstrate (!) the > results, Kaplan says "No", but then ignores all of it and creates his > own version of the truth that Johansen had no linux motivation at all. > Does that smack of bias to you? > We have to remember there is a reason that Kaplan is not _completely_ in his own fantasy world here. Johansen was threatened with criminal prosecution and, as mentioned here earlier, it might be reasonable to conclude that he latched onto Linux as a defense after he had reverse-engineered DeCSS. Of course, I didn't see anything that would be moving in that direction from Johansen's testimony (especially as there is nothing in the timeline about source to Fawcus vs. the Norwegian police visit) so it looks like a huge stretch. If there is something in the record that supports avoiding prosecution as a motive for Johansen, we're in trouble. - Ravi Nanavati From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 26 00:34:44 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA04522 for dvd-discuss-outgoing; Sat, 26 Aug 2000 00:34:44 -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 AAA04519 for ; Sat, 26 Aug 2000 00:34:43 -0400 Received: from mediaone.net (h0060b03c5b8b.ne.mediaone.net [24.128.18.77]) by chmls05.mediaone.net (8.8.7/8.8.7) with ESMTP id AAA21204 for ; Sat, 26 Aug 2000 00:35:00 -0400 (EDT) Message-ID: <39A748F4.73303931@mediaone.net> Date: Sat, 26 Aug 2000 00:35:00 -0400 From: Sphere X-Mailer: Mozilla 4.73 [en] (WinNT; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Appellate Review Standards [Was Re: Time Warner engaging in DeCSS linking] References: <20000826042120.23209.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: > > --- "James S. Tyre" wrote: > > > [...] Of course, the Johansen business > > >is a peculiar case --- was there *any* evidence to support Kaplan's > > >conclusion, other than what amounted to an unsubstantiated guess on > > >the part of one of the plaintiffs' expert witnesses?) > > > > The interesting thing about the Johansen business is that it might > > fail appellate review even if the substantial evidence test > > is applied. He did it in Windows, but he explained why, and to > > my recollection, there is *no* substantial evidence to the > > contrary. > > Can you explain what you mean a little bit more? I don't understand how > the appeals court would apply the test. Forgive me for being a > blockhead. > > A while back I posted a comment that maybe Kaplan had "abused his > discretion" as a fact-finder on this point. Maybe this is worth > bringing up in the recusal argument, because it shows actual bias > beyond just how he ruled. > > As I see it, Kaplan is living in his own little fantasy world on this > one: Johansen testifies he did it for Linux and how the UDF thing > works, they put the LiViD logs in evidence which corroborate, the > MPAA's leading questions even acknowledge programming ideas going back > and forth between Johansen and Fawcus, Pavlovich testifies LiViD was > advanced specifically by DeCSS and even offers to demonstrate (!) the > results, Kaplan says "No", but then ignores all of it and creates his > own version of the truth that Johansen had no linux motivation at all. > Does that smack of bias to you? What's one more instance of ignoring the facts between friends? Where is recusal at this point? There any hope of this being a bad dream; which will re-occur in a few months? -- Sphere. Is DeCSS.c obscene? Why can't I read it? Can knowledge be forbidden? From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 26 00:38:29 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA04600 for dvd-discuss-outgoing; Sat, 26 Aug 2000 00:38:29 -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 AAA04597 for ; Sat, 26 Aug 2000 00:38:28 -0400 Received: from ip73.bedford2.ma.pub-ip.psi.net ([38.32.10.73]) by relay20.smtp.psi.net with smtp (Exim 3.13 #3) id 13SXjw-0003zT-00 for dvd-discuss@eon.law.harvard.edu; Sat, 26 Aug 2000 00:38:45 -0400 From: Ron Gustavson To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Open Source Vs. MPAA Date: Sat, 26 Aug 2000 00:32:16 -0400 Message-ID: References: <39A74241.51D33C0C@mediaone.net> In-Reply-To: <39A74241.51D33C0C@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 AAA04598 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sat, 26 Aug 2000 00:06:25 -0400, Sphere wrote: > >Given the big bucks commercial attack upon >the just plain folks open source community, >we ought to be able to develope some populist >sympathy here... I think we have to consider a proposal in light of the likelihood of an era of hundreds of anti-Internet suits, brought by media titans, with no limits on their ability or incentive to do so. Perhaps corporations should bear a responsibility that is relative to their constituency--ie. If Time Warner sues an individual and they win, that individual is smoke. Therefore the corporation should bear an appropriately scaled liability. If Time Warner loses, they lose not single or treble damages, but damages in proportion to their constituency-- perhaps times the tens of thousands of employees. A corporation that sues an individual should face possible extinction. >I've been wondering. How much of their >argument can be turned aside simply by >pointing out that they are a commercial >enterprise and we are not? Corporations >are chartered by government, and as such >at least some of the restriction upon >government should "rub off" upon the >corporation. Congress and the states >cannot make law by "treaty" which they >cannot make otherwise. > >Even if this argument isn't going to "cut >it" in court, it will have weight in the >court of public opinion. __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 26 00:41:40 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA04654 for dvd-discuss-outgoing; Sat, 26 Aug 2000 00:41:40 -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 AAA04650 for ; Sat, 26 Aug 2000 00:41:39 -0400 Received: from mediaone.net (h0060b03c5b8b.ne.mediaone.net [24.128.18.77]) by chmls05.mediaone.net (8.8.7/8.8.7) with ESMTP id AAA22408 for ; Sat, 26 Aug 2000 00:41:55 -0400 (EDT) Message-ID: <39A74A93.9A2EE6FF@mediaone.net> Date: Sat, 26 Aug 2000 00:41:55 -0400 From: Sphere X-Mailer: Mozilla 4.73 [en] (WinNT; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] DVD CCA Opposition to Pavlovich Quash Motion 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 Erwin wrote: > > On Fri, 25 Aug 2000, Sphere wrote: > > > I haven't visited Pavlovich's web page. Is it > > "interactive"? The fact just about everything > > I'm reading on this is commercial leads me to > > believe he has a stronger than average claim... > > If he isn't doing business at all on the Web > > then he isn't doing business with CA. > > Well, livid does host mailing list arhives, there's a interface to cvs, and > quite a number of things that might be termed "interactive." Mpav's site is > at http://www.linuxvideo.org Oh. I've been there. No wonder MPAA is out for his blood. I guess anticommercial has the word commercial embedded in it... -- Sphere. Is DeCSS.c obscene? Why can't I read it? Can knowledge be forbidden? From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 26 00:41:32 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA04645 for dvd-discuss-outgoing; Sat, 26 Aug 2000 00:41:32 -0400 Received: from web515.mail.yahoo.com (web515.mail.yahoo.com [216.115.104.230]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id AAA04642 for ; Sat, 26 Aug 2000 00:41:31 -0400 Message-ID: <20000826044118.28094.qmail@web515.mail.yahoo.com> Received: from [64.81.25.36] by web515.mail.yahoo.com; Fri, 25 Aug 2000 21:41:18 PDT Date: Fri, 25 Aug 2000 21:41:18 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] Appellate Review Standards [Was Re: TimeWarner engaging in DeCSS linking] To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-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: > "Substantial questions have been raised both at trial and elsewhere > as to the veracity of Johansen's clain. See Ex. CS at S10006 > ("Our analysis indicates that the primary technical breakthroughs > were developed outside of the Linux development groups."). This statement is nonsense. What are "the" Linux development groups? Pretty much every contribution to open source is developed on somebody's private computer and then later checked in. Isn't their "analysis" being quoted here as hearsay? Was the analysis itself entered into evidence? Cross-examined? What was it based on (probably more hearsay)? Is this opinion being treated as expert testimony? Was the analyst offered as an expert in Linux development? __________________________________________________ Do You Yahoo!? Yahoo! Mail - Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 26 00:47:34 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA04762 for dvd-discuss-outgoing; Sat, 26 Aug 2000 00:47:34 -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 AAA04759 for ; Sat, 26 Aug 2000 00:47:33 -0400 Received: from ip73.bedford2.ma.pub-ip.psi.net ([38.32.10.73]) by relay20.smtp.psi.net with smtp (Exim 3.13 #3) id 13SXsk-00040z-00 for dvd-discuss@eon.law.harvard.edu; Sat, 26 Aug 2000 00:47:50 -0400 From: Ron Gustavson To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] DVD CCA Opposition to Pavlovich Quash Motion Date: Sat, 26 Aug 2000 00:41:22 -0400 Message-ID: References: <200008260022.UAA00505@smtp6.mindspring.com> <39A70970.6CFFE505@mediaone.net> <200008260022.UAA00505@smtp6.mindspring.com> <2b6eqskb8kjf0jhfbvmo0p31ucgii4pmtk@4ax.com> <4.3.2.7.2.20000825212620.00a90e20@127.0.0.1> In-Reply-To: <4.3.2.7.2.20000825212620.00a90e20@127.0.0.1> 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 AAA04760 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, 25 Aug 2000 21:31:55 -0700, "James S. Tyre" wrote: >>Is this not slander? > >No. Of course it's really just propaganda. But outrageous at that. __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 26 00:50:34 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA04884 for dvd-discuss-outgoing; Sat, 26 Aug 2000 00:50:34 -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 AAA04874 for ; Sat, 26 Aug 2000 00:50:34 -0400 Received: from mediaone.net (h0060b03c5b8b.ne.mediaone.net [24.128.18.77]) by chmls06.mediaone.net (8.8.7/8.8.7) with ESMTP id AAA28342 for ; Sat, 26 Aug 2000 00:50:50 -0400 (EDT) Message-ID: <39A74CAA.88C108CE@mediaone.net> Date: Sat, 26 Aug 2000 00:50:50 -0400 From: Sphere X-Mailer: Mozilla 4.73 [en] (WinNT; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Open Source Vs. MPAA References: <39A74241.51D33C0C@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 Ron Gustavson wrote: > > On Sat, 26 Aug 2000 00:06:25 -0400, Sphere wrote: > > > > >Given the big bucks commercial attack upon > >the just plain folks open source community, > >we ought to be able to develope some populist > >sympathy here... > > I think we have to consider a proposal in light of the > likelihood of an era of hundreds of anti-Internet > suits, brought by media titans, with no limits on their > ability or incentive to do so. > > Perhaps corporations should bear a responsibility > that is relative to their constituency--ie. If Time Warner > sues an individual and they win, that individual is smoke. > Therefore the corporation should bear an appropriately scaled > liability. If Time Warner loses, they lose not single or treble > damages, but damages in proportion to their constituency-- > perhaps times the tens of thousands of employees. A corporation > that sues an individual should face possible extinction. What you want to do is get their charter revoked. Since coporate charters are a creature of the state (not the feds), it isn't an easy thing to accomplish -- but going after their charter would scare the Hell out of them. (I'm not sure what it would take to kill a foreign corporation.) -- Sphere. Is DeCSS.c obscene? Why can't I read it? Can knowledge be forbidden? From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 26 01:02:23 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id BAA04955 for dvd-discuss-outgoing; Sat, 26 Aug 2000 01:02:23 -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 BAA04952 for ; Sat, 26 Aug 2000 01:02:09 -0400 Received: from ppp.anonymizer.com (c01-191.015.popsite.net [64.24.72.191]) by cyberpass.net (8.8.8/8.7.3) with ESMTP id WAA11750; Fri, 25 Aug 2000 22:04:27 -0700 (PDT) Message-Id: <4.3.2.7.2.20000825215453.00a9fbb0@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, 25 Aug 2000 22:02:16 -0700 To: dvd-discuss@eon.law.harvard.edu, dvd-discuss@eon.law.harvard.edu From: "James S. Tyre" Subject: Re: [dvd-discuss] DVD CCA Opposition to Pavlovich Quash Motion In-Reply-To: References: <4.3.2.7.2.20000825212620.00a90e20@127.0.0.1> <200008260022.UAA00505@smtp6.mindspring.com> <39A70970.6CFFE505@mediaone.net> <200008260022.UAA00505@smtp6.mindspring.com> <2b6eqskb8kjf0jhfbvmo0p31ucgii4pmtk@4ax.com> <4.3.2.7.2.20000825212620.00a90e20@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 12:41 AM 8/26/2000 -0400, Ron Gustavson wrote: >On Fri, 25 Aug 2000 21:31:55 -0700, "James S. Tyre" wrote: > > >>Is this not slander? > > > >No. > >Of course it's really just propaganda. > >But outrageous at that. Indeed. Just skimmed through the Opposition after that post, before now. It makes some legitimate points, but the unsubstantiated (and legally wrong) rhetoric is astounding. I'm not pretending to do a detailed analysis here, but I do *so* love that they're trying to hold against Matt, for California jdx purposes, the fact that he testified in New York. One thing, where they talk about effects in the forum state, they're not completely wrong, but the real analysis centers on Plaintiffs who are in the forum state. The arguments about others in CA who may be effected is an interesting, um, twist. In Calder v. Jones, for example, an analysis of the alleged affect on Shirley Jones' reputation in California was appropriate because Shirley Jones (yeah, that one) lives in CA. DVDCCA is trying to argue pure third party rights, which it cannot do. -------------------------------------------------------------------- James S. Tyre mailto:jstyre@jstyre.com 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 Aug 26 01:26:57 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id BAA05079 for dvd-discuss-outgoing; Sat, 26 Aug 2000 01:26:57 -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 BAA05076 for ; Sat, 26 Aug 2000 01:26:56 -0400 Received: from ip73.bedford2.ma.pub-ip.psi.net ([38.32.10.73]) by relay20.smtp.psi.net with smtp (Exim 3.13 #3) id 13SYUr-00049n-00 for dvd-discuss@eon.law.harvard.edu; Sat, 26 Aug 2000 01:27:13 -0400 From: Ron Gustavson To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Open Source Vs. MPAA Date: Sat, 26 Aug 2000 01:20:44 -0400 Message-ID: References: <39A74241.51D33C0C@mediaone.net> <39A74CAA.88C108CE@mediaone.net> In-Reply-To: <39A74CAA.88C108CE@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 BAA05077 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > >What you want to do is get their charter revoked. >Since coporate charters are a creature of the >state (not the feds), it isn't an easy thing to >accomplish -- but going after their charter would >scare the Hell out of them. I know this must be a ridiculous proposal. But why? (I'm sure anyone who was ever sued by a corporation must have proposed something similar...) __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 26 01:39:53 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id BAA05244 for dvd-discuss-outgoing; Sat, 26 Aug 2000 01:39:53 -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 BAA05241 for ; Sat, 26 Aug 2000 01:39:52 -0400 Received: from localhost (cpt@localhost) by gryphon.auspice.net (8.9.3/8.9.3) with ESMTP id BAA09092 for ; Sat, 26 Aug 2000 01:39:39 -0400 Date: Sat, 26 Aug 2000 01:39:38 -0400 (EDT) From: Joshua Stratton To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Open Source Vs. MPAA 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, IIRC the last _successful_ attempt was made in New York around 1900 or so. There's a group that's been trying to get one of the cigarette companies dechartered, but obviously no luck just yet. The left-field Supreme Court ruling in the 19th century that corporations were persons has probably not helped much. On Sat, 26 Aug 2000, Ron Gustavson wrote: > > > >What you want to do is get their charter revoked. > >Since coporate charters are a creature of the > >state (not the feds), it isn't an easy thing to > >accomplish -- but going after their charter would > >scare the Hell out of them. > > I know this must be a ridiculous proposal. But why? > (I'm sure anyone who was ever sued by a corporation > must have proposed something similar...) > > > __________no-∞-do__________ > From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 26 01:51:07 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id BAA05464 for dvd-discuss-outgoing; Sat, 26 Aug 2000 01:51:07 -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 BAA05461 for ; Sat, 26 Aug 2000 01:51:06 -0400 Message-ID: <20000826055052.27202.qmail@web514.mail.yahoo.com> Received: from [64.81.25.36] by web514.mail.yahoo.com; Fri, 25 Aug 2000 22:50:52 PDT Date: Fri, 25 Aug 2000 22:50:52 -0700 (PDT) From: Bryan Taylor Subject: [dvd-discuss] James S. Tyre for Federal District Judge To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-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, ok, there is the small detail of getting nominated by the president, but other than that have you ever considered it? How does one become a judge, really? I doubt the pres is spending a lot of time reading decisions to decide who he likes. So who is advising him? Kaplan was a Clinton appointee, which makes me pretty happy that the republicans have refused to even vote on his nominations for the last several years. As I understand it there are a lot of vacant spots. __________________________________________________ Do You Yahoo!? Yahoo! Mail - Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 26 02:19:37 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id CAA05593 for dvd-discuss-outgoing; Sat, 26 Aug 2000 02:19:37 -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 CAA05590 for ; Sat, 26 Aug 2000 02:19:36 -0400 Received: from ppp.anonymizer.com (c06-133.015.popsite.net [64.24.77.133]) by cyberpass.net (8.8.8/8.7.3) with ESMTP id XAA21301; Fri, 25 Aug 2000 23:21:58 -0700 (PDT) Message-Id: <4.3.2.7.2.20000825225758.04bddbf0@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, 25 Aug 2000 23:19:48 -0700 To: dvd-discuss@eon.law.harvard.edu, dvd-discuss@eon.law.harvard.edu From: "James S. Tyre" Subject: Re: [dvd-discuss] James S. Tyre for Federal District Judge In-Reply-To: <20000826055052.27202.qmail@web514.mail.yahoo.com> Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii"; format=flowed Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu At 10:50 PM 8/25/2000 -0700, Bryan Taylor wrote: >Well, ok, there is the small detail of getting nominated by the >president, but other than that have you ever considered it? Hmm, something like $125K/year, life tenure, could do worse. ;-) No interest though, much too cloistered of a life for me. It is an open secret in D.C. that there is a very, um, interesting, weekly poker game in D.C., in which Scalia and Rehnquist was among the regulars, as was the father of one of my partners before he passed away. I do sincerely hope that someone who was/is a regular will write about it, it would be a fascinating read. ;-) >How does one become a judge, really? I doubt the pres is spending a lot >of time reading decisions to decide who he likes. So who is advising >him? The senior senator of the state in which the judge will sit recommends. Staff vets. At District Court level, the Prez (any Prez, not just the current one) usually just says "OK". They start paying personal attention only for appellate court, and of course, USSC. Even at the USSC level, there are many in the judiciary who have not turned out as expected by the Prez who nominated, even where, unlike Earl Warren, they had a track record of opinion writing. The reason is simply that the higher the court, the less constrained by precedent some feel they are. >Kaplan was a Clinton appointee, which makes me pretty happy that the >republicans have refused to even vote on his nominations for the last >several years. As I understand it there are a lot of vacant spots. Yes, and it pure power politics, which ultimately hurts the judiciary, the judicial system and those who need it, regardless of what anyone thinks about Kaplan or Clinton. This was a lousy result, no argument there. But most cases usually turn out more or less right, it is not a great system, but it is not terrible either, in the big picture. And while those appointments are being held up, there are people with legitimate grievances, and winnable cases, who have to wait forever to get to trial, or who have to settle before trial because they can't wait, because there aren't enough judges to hear their cases as quickly as is supposed to happen. (Cases in which a preliminary injunction is granted are entitled to trial priority, most cases do not move nearly this quickly, without opening up the area of whether Kaplan made it move too quickly.) -------------------------------------------------------------------- James S. Tyre mailto:jstyre@jstyre.com 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 Aug 26 02:38:36 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id CAA05830 for dvd-discuss-outgoing; Sat, 26 Aug 2000 02:38:36 -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 CAA05827 for ; Sat, 26 Aug 2000 02:38:35 -0400 Message-ID: <20000826063822.555.qmail@web514.mail.yahoo.com> Received: from [64.81.25.36] by web514.mail.yahoo.com; Fri, 25 Aug 2000 23:38:22 PDT Date: Fri, 25 Aug 2000 23:38:22 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] DVD CCA Opposition to Pavlovich Quash Motion To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Here's another article on personal jurisdiction on the internet: http://journal.law.ufl.edu/~techlaw/4/Dearing.html __________________________________________________ Do You Yahoo!? Yahoo! Mail - Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 26 04:17:13 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id EAA07069 for dvd-discuss-outgoing; Sat, 26 Aug 2000 04:17:13 -0400 Received: from mail.lemuria.org (lemuria.borgfelde.ricardo.de [195.244.103.65]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id EAA07059 for ; Sat, 26 Aug 2000 04:17:11 -0400 Received: from lemuria.org by mail.lemuria.org via rsmtp with bsmtp id for ; Sat, 26 Aug 2000 10:11:44 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Received: by lemuria.org via sendmail with stdio id for dvd-discuss@eon.law.harvard.edu; Sat, 26 Aug 2000 10:09:19 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Date: Sat, 26 Aug 2000 10:09:19 +0200 From: Tom Vogt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Appellate Review Standards [Was Re: Time Warner engaging in DeCSS linking] Message-ID: <20000826100919.D2048@lemuria.org> References: <20000826042120.23209.qmail@web509.mail.yahoo.com> <39A7495F.34B73F58@mit.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0pre3i In-Reply-To: <39A7495F.34B73F58@mit.edu> X-Privacy: If you can, please encrypt your mails - finger for key Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Ravi Nanavati wrote: > We have to remember there is a reason that Kaplan is not _completely_ > in his own fantasy world here. Johansen was threatened with criminal > prosecution and, he wasn't. jon was questioned by the policy but AFAIK no charges whatsoever were ever made against him. also, the norwegian authorities went after him after being nicely "asked" to do so by, guess who? the MPAA. the authorities even officially APOLOGIZED later (something that seemingly never made the US news), and the case was discussed in the norwegian parliament. everything in Norway seems to strongly support jon. now authorities going after one expert witness after being pushed in that direction by the plaintiffs, then using a twisted version of that fact as evidence - given the fact that MPAA isn't stupid, let's assume they knew precisely that their activities in Norway wouldn't get them anywhere. maybe being able to claim "your witness is a criminal" was the #1 purpose of the whole thing? > be moving in that direction from Johansen's testimony (especially as > there is nothing in the timeline about source to Fawcus vs. the Norwegian > police visit) the police visit happened MUCH later. I don't remember the date, and for several reasons don't keep archives on my decss mailings. but it was definitely after January. maybe march or something. there may be a link to some articles on my webpage. > so it looks like a huge stretch. If there is something > in the record that supports avoiding prosecution as a motive for > Johansen, we're in trouble. by the time he testified in NY, Norway had long apologized to him and his father. -- "The net treats censorship as a malfunction and re-routes around it." (John Gilmore) From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 26 04:17:15 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id EAA07073 for dvd-discuss-outgoing; Sat, 26 Aug 2000 04:17:15 -0400 Received: from mail.lemuria.org (lemuria.borgfelde.ricardo.de [195.244.103.65]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id EAA07050 for ; Sat, 26 Aug 2000 04:17:08 -0400 Received: from lemuria.org by mail.lemuria.org via rsmtp with bsmtp id for ; Sat, 26 Aug 2000 10:11:44 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Received: by lemuria.org via sendmail with stdio id for dvd-discuss@eon.law.harvard.edu; Sat, 26 Aug 2000 09:53:05 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Date: Sat, 26 Aug 2000 09:53:05 +0200 From: Tom Vogt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] DVD CCA Opposition to Pavlovich Quash Motion Message-ID: <20000826095305.B2048@lemuria.org> References: <20000826025640.26814.qmail@web510.mail.yahoo.com> <39A73E81.C913D5B5@mediaone.net> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0pre3i In-Reply-To: <39A73E81.C913D5B5@mediaone.net> X-Privacy: If you can, please encrypt your mails - finger for key Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Sphere wrote: > I haven't visited Pavlovich's web page. Is it > "interactive"? The fact just about everything > I'm reading on this is commercial leads me to > believe he has a stronger than average claim... > If he isn't doing business at all on the Web > then he isn't doing business with CA. matt doesn't have a webpage. he's a member/leader of a group that does. last time I visited it, the livid project webpage was fully passive. -- "The net treats censorship as a malfunction and re-routes around it." (John Gilmore) From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 26 04:17:12 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id EAA07060 for dvd-discuss-outgoing; Sat, 26 Aug 2000 04:17:12 -0400 Received: from mail.lemuria.org (lemuria.borgfelde.ricardo.de [195.244.103.65]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id EAA07054 for ; Sat, 26 Aug 2000 04:17:10 -0400 Received: from lemuria.org by mail.lemuria.org via rsmtp with bsmtp id for ; Sat, 26 Aug 2000 10:11:44 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Received: by lemuria.org via sendmail with stdio id for dvd-discuss@eon.law.harvard.edu; Sat, 26 Aug 2000 10:01:30 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Date: Sat, 26 Aug 2000 10:01:30 +0200 From: Tom Vogt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Open Source Vs. MPAA Message-ID: <20000826100130.C2048@lemuria.org> References: <39A74241.51D33C0C@mediaone.net> <39A74CAA.88C108CE@mediaone.net> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0pre3i In-Reply-To: <39A74CAA.88C108CE@mediaone.net> X-Privacy: If you can, please encrypt your mails - finger for key Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Sphere wrote: > What you want to do is get their charter revoked. > Since coporate charters are a creature of the > state (not the feds), it isn't an easy thing to > accomplish -- but going after their charter would > scare the Hell out of them. I like that idea a lot. are there any precedences? any idea on how one can do that? -- "The net treats censorship as a malfunction and re-routes around it." (John Gilmore) From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 26 04:17:11 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id EAA07056 for dvd-discuss-outgoing; Sat, 26 Aug 2000 04:17:11 -0400 Received: from mail.lemuria.org (lemuria.borgfelde.ricardo.de [195.244.103.65]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id EAA07046 for ; Sat, 26 Aug 2000 04:17:06 -0400 Received: from lemuria.org by mail.lemuria.org via rsmtp with bsmtp id for ; Sat, 26 Aug 2000 10:11:44 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Received: by lemuria.org via sendmail with stdio id for dvd-discuss@eon.law.harvard.edu; Sat, 26 Aug 2000 09:46:00 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Date: Sat, 26 Aug 2000 09:46:00 +0200 From: Tom Vogt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] DVD CCA Opposition to Pavlovich Quash Motion Message-ID: <20000826094600.A2048@lemuria.org> References: <39A70970.6CFFE505@mediaone.net> <200008260022.UAA00505@smtp6.mindspring.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0pre3i In-Reply-To: <200008260022.UAA00505@smtp6.mindspring.com> X-Privacy: If you can, please encrypt your mails - finger for key Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu John Young wrote: > Defendant Pavlovich is a leader in the so-called "open source" > movement, which is dedicated to the proposition that material, > copyrighted or not, should be made available over the Internet > for free. that's the most insulting statement I've ever heard about free software. is this on /. already? it should get a couple companies, from redhat to IBM angry. -- "The net treats censorship as a malfunction and re-routes around it." (John Gilmore) From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 26 04:22:27 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id EAA07320 for dvd-discuss-outgoing; Sat, 26 Aug 2000 04:22:27 -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 EAA07314 for ; Sat, 26 Aug 2000 04:22:13 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id EAA08618 for dvd-discuss@eon.law.harvard.edu; Sat, 26 Aug 2000 04:31:25 -0400 Date: Sat, 26 Aug 2000 04:31:19 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] The US v O'Brien standard Message-ID: <20000826043119.B6634@eldritchpress.org> References: <20000826015150.8514.qmail@web509.mail.yahoo.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <20000826015150.8514.qmail@web509.mail.yahoo.com>; from bryan_w_taylor@yahoo.com on Fri, Aug 25, 2000 at 06:51:50PM -0700 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, Aug 25, 2000 at 06:51:50PM -0700, Bryan Taylor wrote: > Now that we have Kaplan's opinion, we are for the first time able to > attack rather than defend. Kaplan has established the standard for > analysis, US v. O'Brien, so we should take a good strong look at it: > > U.S. v. O'Brien > 391 U.S. 367 (Sup. Ct. 1968) > http://caselaw.findlaw.com/cgi-bin/getcase.pl?navby=case&court=us&vol=391&invol=367 > Summary: > http://bioinformatics.ucsf.edu/bwtaylor/1st_Amendment/content_neutrality.html#US_v_OBrien > > "When 'speech' and 'nonspeech' elements are combined in the same course > of conduct, a sufficiently important governmental interest in > regulating the nonspeech element can justify incidental limitations on > First Amendment freedoms." > > In O'Brien, it was clear: burning your draft card is conduct. There's > no analog here. What exactly is the conduct in offering to the public a > computer program? Thanks for this flash from the past! The Court ruled in I (next to last paragraph) that the amendment on the face of it did not limit speech (whether or not O'Brien's act was covered by the First Amendment), and it didn't really have to address that point because it was not argued: By the 1965 Amendment, Congress added to 12 (b) (3) of the 1948 Act the provision here at issue, subjecting to criminal liability not only one who "forges, alters, or in any manner changes" but also one who "knowingly destroys, [or] knowingly mutilates" a certificate. We note at the outset that the 1965 Amendment plainly does not abridge free speech on its face, and we do not understand O'Brien to argue otherwise. Amended 12 (b) (3) on its face deals with conduct having no connection with speech. It prohibits the knowing destruction of certificates issued by the Selective Service System, and there is nothing necessarily expressive about ^^^^^^^^^^^ such conduct. The Amendment does not distinguish between public and private destruction, and it does not punish only ^^^^^^^ destruction engaged in for the purpose of expressing views. Compare Stromberg v. California, 283 U.S. 359 (1931). 21 A law prohibiting destruction of Selective Service certificates no more abridges free speech on its face than a motor vehicle law prohibiting the destruction of drivers' licenses, or a tax law prohibiting the destruction of books and records. [391 U.S. 367, 376] So first it notes that on its face the amendment "deals with conduct having no connection with speech....there is nothing expressive about such conduct," although it earlier had qualified that point by using the term "necessarily," a term it didn't have to explain because defendant didn't argue that point. And then in II it goes on to rebut the notion that burning a draft card is "symbolic speech" within the First Amendment, but answers the case where it might be so considered: We cannot accept the view that an apparently limitless variety of conduct can be labeled "speech" whenever the person engaging in the conduct intends thereby to express an idea. However, even on the assumption that the alleged communicative element in O'Brien's conduct is sufficient to bring into play the First Amendment, it does not necessarily follow that the destruction of a registration certificate is constitutionally protected activity. This Court has held that when "speech" and "nonspeech" elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms. To characterize the quality of the governmental interest which must appear, the Court has employed a variety of descriptive terms: compelling; 22 substantial; 23 subordinating; 24 [391 U.S. 367, 377] paramount; 25 cogent; 26 strong. 27 Whatever imprecision inheres in these terms, we think it clear that a government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest. We find that the 1965 Amendment to 12 (b) (3) of the Universal Military Training and Service Act meets all of these requirements, and consequently that O'Brien can be constitutionally convicted for violating it. But it is absurd to think that an amendment to the Copyright Act that forbids a certain class of works does not bring into play the First Amendment. The amendment 50 U.S.C. App. 462 (b) was justified by the War Powers clause of the Constitution. Any copyright law must be justified by the Copyright Clause, not by Congress simply deciding that the vote-buying powers of Hollywood are sufficient. It is also important to note that the Court does NOT say that if "speech" and "nonspeech" elements are mixed, then the conduct is always NOT protected. It simply says there has to be sufficient constitutional power for Congress to pass such a law, plus other reasons well enumerated here. But the Copyright Clause of the Constitution gives no power to Congress to license the DVD-CCA to license players, and make any computer programs they don't license, illegal. That would be an illegal tying of copyright to some other activity that is not connected to copyright, and provide a perpetual patent or copyright that is specifically prohibited by the Constitution. Hollywood might lose some of its monopoly business model, but that is not what the Copyright Clause protects, and Congress can pass laws pertaining to copyright only "to promote the progress of science and the useful arts," not to protect Hollywood profits by preventing others from publishing their own creative works. The many functions performed by Selective Service certificates establish beyond doubt that Congress has a legitimate and substantial interest in preventing their wanton and unrestrained destruction and assuring their continuing availability by punishing people who knowingly and wilfully destroy or mutilate them. And we are unpersuaded that the pre-existence of the nonpossession regulations in any way negates this interest. I would hope today this would be found to be a more than ridiculous opinion. Because if it were true then millions of Americans have knowingly violated the same law, when they destroyed their obsolete Selective Service certificates in the years since 1965. Note that the law gives no exceptions, no ways to tell what is authorized from what is not, when it comes to destroying the cards. It attempts to make illegal the very act of destroying a card, with no ability of the court to determine motive, as for example if defendant privately destroys an older Selective Service System classification notice once he had received a new one. (I can't remember ever being authorized to destroy an old certificate, and the law doesn't specify this, as far as I can see.) The appellate court decided that since O'Brien admitted he was not carrying a valid Selective Service System card, he should be convicted on that charge (even though it was not prosecuted that way). The FBI did not show that the charred remnants of the card burned by O'Brien really were particles of a valid Selective Service card --that was stipulated by defendant because he saw the issue as one of free speech. Similarly, the DMCA tries to make illegal some conduct such as decrypting a program, no matter what the motive or context, and tries to isolate this conduct in such a way it can never be a voluntary speech act. The "authority model" here is quite the same as in O'Brien, and the Court must find that it is plainly not valid. It is misusing 1201 by taking only parts of it that contradict other parts that provide for fair use. If nobody could decrypt a DVD, nobody could play one. If nobody could ever destroy a draft card, then either the jails would be full or the wallets of millions of us-- including probably Judge Kaplan--would still contain them (hey, mine does--does yours?) From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 26 04:37:17 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id EAA07472 for dvd-discuss-outgoing; Sat, 26 Aug 2000 04:37:17 -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 EAA07469 for ; Sat, 26 Aug 2000 04:37:12 -0400 Received: from ppp.anonymizer.com (c06-133.015.popsite.net [64.24.77.133]) by cyberpass.net (8.8.8/8.7.3) with ESMTP id BAA09880; Sat, 26 Aug 2000 01:39:34 -0700 (PDT) Message-Id: <4.3.2.7.2.20000826004916.00b3fec0@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, 26 Aug 2000 01:37:24 -0700 To: dvd-discuss@eon.law.harvard.edu, dvd-discuss@eon.law.harvard.edu From: "James S. Tyre" Subject: Re: [dvd-discuss] ok... In-Reply-To: <00082512003901.24844@www.rjmconsulting.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 11:54 AM 8/25/2000 -0700, James wrote: >Honestly, I'd like to hear from the lawyers on the list and hopefully even the >defense team, Ed, Martin, etc... - I have one simple question that doesn't >require a whole lot: > >Do we even have a chance? Or are we wasting our breath and watching our >so-called constitutional rights go down the tubes? Are we going to have to >just roll over and let the Kaplans and Valentis of the world take control of >everything we hold dear? I'll not blow smoke up your ass by saying that we *will* win; but yes, there is a chance, and it a reasonable one, not just one in a hundred or some such. I'm not bragging here, just giving a reference point, but I've won cases on appeal which, at least in my view, were more difficult than this one - which is not to say this will be easy, a sure thing. When a lawyer tries a case, the lawyer always tries to win, but there are some cases which the lawyer just knows will be lost at trial, and half the purpose of the trial is to set up the appeal. We've all heard this before, but it isn't just spin-doctoring, it's fact, I've had my own cases of that sort. And remember that Marty's record in higher courts is rather nice indeed. I'm going to exercise my prerogatives here, both as someone who is a good deal older than most on this list and as a lawyer for the last 22 years. What I see in many places on the Net is the perception that it's (relatively) easy to win court cases involving the First Amendment and the Net. CDA, COPA, ALA v. Pataki, ACLU v. Miller, Mainstream Loudoun v. Board of Trustees, the list goes on of cases won the first time out. But while those wins are great, it has given some a false sense of how the justice system works. It isn't always that easy, sometimes it takes losses in some cases before the victories come in others (and sometimes the victories don't come at all). I want for this appeal to be won, of course, but I look at the bigger picture, know that all is not lost if this one is lost, that sometimes it takes a lot of battles. Again, calling just on my own practice, there is one particular legal principle which I lost in about 5 or 6 cases before winning; that win is now established California precedent; and though I was not involved in the case on the principle which later was decided by the USSC, the USSC was influenced by the precedent established in California. I'm tired, it's late for this middle-aged guy, but what I'm saying, in a nutshell is that: 1) The appeal is winnable, though not sure-fire; 2) Even if this appeal is lost, it's just a battle, not the end of the war; and surely this is a war. As I said, no smoke-blowing, but from my perspective, it is way too premature to throw in the towel. -------------------------------------------------------------------- James S. Tyre mailto:jstyre@jstyre.com 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 Aug 26 05:06:50 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id FAA08176 for dvd-discuss-outgoing; Sat, 26 Aug 2000 05:06:50 -0400 Received: from mail.lemuria.org (lemuria.borgfelde.ricardo.de [195.244.103.65]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id FAA08173 for ; Sat, 26 Aug 2000 05:06:49 -0400 Received: from lemuria.org by mail.lemuria.org via rsmtp with bsmtp id for ; Sat, 26 Aug 2000 11:03:21 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Received: by lemuria.org via sendmail with stdio id for dvd-discuss@eon.law.harvard.edu; Sat, 26 Aug 2000 10:13:06 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Date: Sat, 26 Aug 2000 10:13:06 +0200 From: Tom Vogt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Open Source Vs. MPAA Message-ID: <20000826101306.A2166@lemuria.org> References: Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0pre3i In-Reply-To: X-Privacy: If you can, please encrypt your mails - finger for key Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Joshua Stratton wrote: > The left-field Supreme Court ruling in the 19th century that corporations > were persons has probably not helped much. there's still the death sentence. :) (there's even a price on rtmark.com for getting a corporation sentenced to death.) ok, so the corporate legal framework is a little broken. we probably knew that before. won't help us in this case. what about DVD CCA claiming to be a non-profit org? can they even argue that decss is doing COMMERCIAL harm to them? -- "The net treats censorship as a malfunction and re-routes around it." (John Gilmore) From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 26 06:30:11 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id GAA08536 for dvd-discuss-outgoing; Sat, 26 Aug 2000 06:30:11 -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 GAA08533 for ; Sat, 26 Aug 2000 06:30:10 -0400 Received: from jy01 (user-2inii48.dialup.mindspring.com [165.121.72.136]) by smtp10.atl.mindspring.net (8.9.3/8.8.5) with SMTP id GAA00823 for ; Sat, 26 Aug 2000 06:30:21 -0400 (EDT) Message-Id: <200008261030.GAA00823@smtp10.atl.mindspring.net> X-Sender: jya@pop.pipeline.com X-Mailer: QUALCOMM Windows Eudora Pro Version 4.0 Date: Sat, 26 Aug 2000 06:22:45 -0400 To: dvd-discuss@eon.law.harvard.edu From: John Young Subject: Re: [dvd-discuss] ok... In-Reply-To: <4.3.2.7.2.20000826004916.00b3fec0@127.0.0.1> References: <00082512003901.24844@www.rjmconsulting.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 James Tyre's excellent commentary fits that of the 2600 defense team. Recall that Marty said throughout the trial that there was no expectation of changing Kaplan's prejudice only to highlight it and through that to show MPAA's and the copyright industry's abuse of political power exhibited in the DMCA. Recall also that it has been EFF's and others' intention since DMCA was first proposed and all through its legislative history to oppose its giveaway to the copyright industry at the expense of creative artists, researchers, scholars and, most importantly, the public. The DVD-DeCSS cases are indeed only part of an ongoing war, and there will be others, win or lose these two. And the war will not be limited to the US but will spread to the rest of the world as US practices are exported -- as described in the DVD CCA opposition to Pavlovich -- by defining US copyright industry interests as applicable in all nations. This global reach is what WIPO was set up to enforce, and as a commentator noted a few days ago, WIPO is a US invention. The sooner other nations and their citizens understand that the DVD-DeCSS cases are forerunners of an attack on them the sooner the scope of the war will be understood. Read again the list of members of the Copy Protection Working Group to see how many nations' copyrightists have enlisted on the other side, and note how many of them are US and US-allied practitioners of economic imperialism,that is profound believers in cloaking their own intellectual property theft with accusations of criminal behavior against innocents -- thus spake Kaplan in his very first public statement, thus spakes all of the copyright industry cartel. This is what the opponents said of WIPO and DMCA during their legislative consideration, and too few non- combatants heeded the calls of alarm. That was because the copyright industry has massive PR and lobbying machine. And, as ever, a massive legal attack team for doing what needs to be done when there are challenges. Comparison to all-out war is apt, but make that global not only US. Kaplan stated in January that US national interests are at stake in the New York case. "National interests" are always invoked in the run-up to military action. Seriously, the copyright war could evolve in to lethal combat, for economic interests are commonly the basis for killing, especially among big time thieves and truly believe what is yours is rightfully theirs, as they say, see my gun. DVD CCA's oppostion brief reads like US gun-waving. From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 26 06:43:13 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id GAA08662 for dvd-discuss-outgoing; Sat, 26 Aug 2000 06:43:13 -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 GAA08659 for ; Sat, 26 Aug 2000 06:43:03 -0400 Received: from jy01 (user-2inii48.dialup.mindspring.com [165.121.72.136]) by smtp10.atl.mindspring.net (8.9.3/8.8.5) with SMTP id GAA04957 for ; Sat, 26 Aug 2000 06:43:05 -0400 (EDT) Message-Id: <200008261043.GAA04957@smtp10.atl.mindspring.net> X-Sender: jya@pop.pipeline.com X-Mailer: QUALCOMM Windows Eudora Pro Version 4.0 Date: Sat, 26 Aug 2000 06:35:29 -0400 To: dvd-discuss@eon.law.harvard.edu From: John Young Subject: Re: [dvd-discuss] Weil, Gotshal rant In-Reply-To: <8gaeqskb3rjjgri7f2orlp1h99r293pl09@4ax.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 Ron, Those are line numbers which were not properly edited from the text by us after scanning the hardcopy. Corrections have been made to those and a few others. Thanks for noting; let us know of others we missed. At 10:49 PM 8/25/00 -0400, you wrote: > > | At the time he misappropriated plaintiffs trade secrets, he knew the > | 10 motion picture industry was centered in California (Pavlovich Aug. > | Depo., pp. 29-30); > >Which ten is this? (BTW it must be a typo, no?) What criteria apply? Number >of titles/year? (better go to Delhi) broad distribution? Delhi again--or Hong Kong. >Sheer hubris? Well, OK. Hollywood. > > | At the time he misappropriated plaintiffs trade secrets, he knew the > | 12 computer technology industry was centered in California (Pavlovich > | Aug. Depo., pp. 41-44); > >Another slur in baby talk: Ba Ba dip di dip...Ba Ba dip di dip.. >(I never heard of the #12 computer; does Weil, Gotshal make associates do all the work?) > > | DVD discs are instruments of the motion picture industry in that their > | purpose is to deliver motion picture content to their purchasers 14 > | Pavlovich Aug. Depo., pp. 28); > >We don't know what their purpose is. But they are published products. >It could be said that motion picture content can only be delivered at a >motion picture theater. DVDs are another market product entirely. > >more to come... > > __________no-∞-do__________ > From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 26 07:13:17 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id HAA08880 for dvd-discuss-outgoing; Sat, 26 Aug 2000 07:13:17 -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 HAA08877 for ; Sat, 26 Aug 2000 07:13:16 -0400 Received: from mediaone.net (h0060b03c5b8b.ne.mediaone.net [24.128.18.77]) by chmls05.mediaone.net (8.8.7/8.8.7) with ESMTP id HAA09604 for ; Sat, 26 Aug 2000 07:13:34 -0400 (EDT) Message-ID: <39A7A65D.9BD50C09@mediaone.net> Date: Sat, 26 Aug 2000 07:13:33 -0400 From: Sphere X-Mailer: Mozilla 4.73 [en] (WinNT; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Open Source Vs. MPAA 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 Joshua Stratton wrote: > > Well, IIRC the last _successful_ attempt was made in New York around 1900 > or so. There's a group that's been trying to get one of the cigarette > companies dechartered, but obviously no luck just yet. > > The left-field Supreme Court ruling in the 19th century that corporations > were persons has probably not helped much. Don't get me started on that bit of lunacy. Corps people? -- baugh! > On Sat, 26 Aug 2000, Ron Gustavson wrote: > > > > > > >What you want to do is get their charter revoked. > > >Since coporate charters are a creature of the > > >state (not the feds), it isn't an easy thing to > > >accomplish -- but going after their charter would > > >scare the Hell out of them. > > > > I know this must be a ridiculous proposal. But why? > > (I'm sure anyone who was ever sued by a corporation > > must have proposed something similar...) > > > > > > __________no-∞-do__________ > > -- Sphere. Is DeCSS.c obscene? Why can't I read it? Can knowledge be forbidden? From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 26 07:19:53 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id HAA08988 for dvd-discuss-outgoing; Sat, 26 Aug 2000 07:19:53 -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 HAA08985 for ; Sat, 26 Aug 2000 07:19:52 -0400 Received: from mediaone.net (h0060b03c5b8b.ne.mediaone.net [24.128.18.77]) by chmls05.mediaone.net (8.8.7/8.8.7) with ESMTP id HAA10916 for ; Sat, 26 Aug 2000 07:20:10 -0400 (EDT) Message-ID: <39A7A7EA.ABF732D3@mediaone.net> Date: Sat, 26 Aug 2000 07:20:10 -0400 From: Sphere X-Mailer: Mozilla 4.73 [en] (WinNT; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Open Source Vs. MPAA References: <39A74241.51D33C0C@mediaone.net> <39A74CAA.88C108CE@mediaone.net> <20000826100130.C2048@lemuria.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 Tom Vogt wrote: > > Sphere wrote: > > What you want to do is get their charter revoked. > > Since coporate charters are a creature of the > > state (not the feds), it isn't an easy thing to > > accomplish -- but going after their charter would > > scare the Hell out of them. > > I like that idea a lot. are there any precedences? any idea on how one can > do that? Don't bother, unless you're just looking to harass them. It doesn't really ever hapen. > -- > "The net treats censorship as a malfunction and re-routes around it." > (John Gilmore) -- Sphere. Is DeCSS.c obscene? Why can't I read it? Can knowledge be forbidden? From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 26 08:23:19 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id IAA09125 for dvd-discuss-outgoing; Sat, 26 Aug 2000 08:23:19 -0400 Received: from ramtop.demon.co.uk (phil@ramtop.demon.co.uk [194.222.228.63]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id IAA09122 for ; Sat, 26 Aug 2000 08:23:16 -0400 Received: (from phil@localhost) by ramtop.demon.co.uk (8.9.3/8.9.3) id NAA14762 for dvd-discuss@eon.law.harvard.edu; Sat, 26 Aug 2000 13:23:39 +0100 Date: Sat, 26 Aug 2000 13:23:38 +0100 From: Phil Harrison To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] DVD CCA Opposition to Pavlovich Quash Motion Message-ID: <20000826132338.A14649@ramtop.demon.co.uk> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <200008260022.UAA00505@smtp6.mindspring.com> <39A70970.6CFFE505@mediaone.net> <200008260022.UAA00505@smtp6.mindspring.com> <2b6eqskb8kjf0jhfbvmo0p31ucgii4pmtk@4ax.com> <4.3.2.7.2.20000825212620.00a90e20@127.0.0.1> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii Content-Disposition: inline User-Agent: Mutt/1.2.5i In-Reply-To: <4.3.2.7.2.20000825212620.00a90e20@127.0.0.1>; from jstyre@jstyre.com on Fri, Aug 25, 2000 at 09:31:55PM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, Aug 25, 2000 at 09:31:55PM -0700, James S. Tyre wrote: > At 09:13 PM 8/25/2000 -0400, Ron Gustavson wrote: > >On Fri, 25 Aug 2000 20:14:55 -0400, John Young wrote: > > > > >Thanks to EFF, we offer DVD CCA's Memorandum of > > >Opposition to the Pavlovich Quash Motion, dated August 18: > > > > > > http://cryptome.org/dvd-v-521-opq.htm (39K) > > > > > >It opens with this statement: > > > > > > Defendant Pavlovich is a leader in the so-called "open source" > > > movement, which is dedicated to the proposition that material, > > > copyrighted or not, should be made available over the Internet > > > for free. Acting in concert with like-minded individuals > > > >Is this not slander? > > No. > OK, is it purjery then? I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed in Menlo Park, California on August 18, 2000. [Signature] Jean Wirdzek -- Phil Harrison From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 26 10:08:13 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA10190 for dvd-discuss-outgoing; Sat, 26 Aug 2000 10:08:13 -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 KAA10187 for ; Sat, 26 Aug 2000 10:08:13 -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 KAA03033 for ; Sat, 26 Aug 2000 10:08:31 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id KAA13272; Sat, 26 Aug 2000 10:08:30 -0400 (EDT) Date: Sat, 26 Aug 2000 10:08:30 -0400 (EDT) Message-Id: <200008261408.KAA13272@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] DVD CCA Opposition to Pavlovich Quash Motion In-Reply-To: <20000826132338.A14649@ramtop.demon.co.uk> References: <200008260022.UAA00505@smtp6.mindspring.com> <39A70970.6CFFE505@mediaone.net> <2b6eqskb8kjf0jhfbvmo0p31ucgii4pmtk@4ax.com> <4.3.2.7.2.20000825212620.00a90e20@127.0.0.1> <20000826132338.A14649@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: > > > > Defendant Pavlovich is a leader in the so-called "open source" > > > > movement, which is dedicated to the proposition that material, > > > > copyrighted or not, should be made available over the Internet > > > > for free. Acting in concert with like-minded individuals > > > > > >Is this not slander? > > > > No. > > > OK, is it purjery then? > > I declare under penalty of perjury under the laws of the State of > California that the foregoing is true and correct. Executed in > Menlo Park, California on August 18, 2000. Well, here's an essay which could be used to help prove that the DVDCCA's statement, quoted above, is at least false. The author is Eric Raymond, who may not have coined the term "open source", but is certainly the person primarily responsible for popularizing it. The essay is about the DVDCCA and Napster, and while supporting the DVDCCA, he *also* opines strongly that Napster is morally in the wrong, precisely because it denies artists control over their works. http://lwn.net/2000/0803/a/big-lies.php3 As to whether that means it's perjury, well IANAL, but that may be a different kettle of eels. IIRC, perjury is not only testimony that is false, but testimony that is *willfully* false (the liar has to know it), and false in some material way (so the invocation of Pavlovich's motives would have to be important to the DVDCCA's case, and not just some rhetorical flourish, if it were to sustain a perjury conviction). So, ignorance may be a defense. In their case, a strong defense. rst From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 26 10:20:18 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA10357 for dvd-discuss-outgoing; Sat, 26 Aug 2000 10:20:18 -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 KAA10354 for ; Sat, 26 Aug 2000 10:20:17 -0400 Received: from 216-164-133-47.s47.tnt3.lnhva.md.dialup.rcn.com ([216.164.133.47]) by smtp02.mrf.mail.rcn.net with esmtp (Exim 3.15 #2) id 13Sgp1-00023O-00 for dvd-discuss@eon.law.harvard.edu; Sat, 26 Aug 2000 10:20:35 -0400 Date: Sat, 26 Aug 2000 10:20:21 EDT From: Jeremy Erwin To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] DVD CCA Opposition to Pavlovich Quash Motion 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 Sat, 26 Aug 2000, Robert S. Thau wrote: > Well, here's an essay which could be used to help prove that the > DVDCCA's statement, quoted above, is at least false. The author is > Eric Raymond, who may not have coined the term "open source", but is > certainly the person primarily responsible for popularizing it. The > essay is about the DVDCCA and Napster, and while supporting the > DVDCCA, he *also* opines strongly that Napster is morally in the > wrong, precisely because it denies artists control over their works. > > http://lwn.net/2000/0803/a/big-lies.php3 > Err, shouldn't that be "while supporting the fight against DVDCCA, he *also* opines strongly that Napster is morally in the wrong..." Jeremy From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 26 10:25:29 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA10467 for dvd-discuss-outgoing; Sat, 26 Aug 2000 10:25:29 -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 KAA10464 for ; Sat, 26 Aug 2000 10:25:28 -0400 Received: from mediaone.net (h0060b03c5b8b.ne.mediaone.net [24.128.18.77]) by chmls05.mediaone.net (8.8.7/8.8.7) with ESMTP id KAA03536 for ; Sat, 26 Aug 2000 10:25:46 -0400 (EDT) Message-ID: <39A7D369.F54E32AE@mediaone.net> Date: Sat, 26 Aug 2000 10:25:45 -0400 From: Sphere X-Mailer: Mozilla 4.73 [en] (WinNT; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] DVD CCA Opposition to Pavlovich Quash Motion References: <200008260022.UAA00505@smtp6.mindspring.com> <39A70970.6CFFE505@mediaone.net> <2b6eqskb8kjf0jhfbvmo0p31ucgii4pmtk@4ax.com> <4.3.2.7.2.20000825212620.00a90e20@127.0.0.1> <20000826132338.A14649@ramtop.demon.co.uk> <200008261408.KAA13272@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: > > Phil Harrison writes: > > > > > Defendant Pavlovich is a leader in the so-called "open source" > > > > > movement, which is dedicated to the proposition that material, > > > > > copyrighted or not, should be made available over the Internet > > > > > for free. Acting in concert with like-minded individuals > > > > > > > >Is this not slander? > > > > > > No. > > > > > OK, is it purjery then? > > > > I declare under penalty of perjury under the laws of the State of > > California that the foregoing is true and correct. Executed in > > Menlo Park, California on August 18, 2000. > > Well, here's an essay which could be used to help prove that the > DVDCCA's statement, quoted above, is at least false. The author is > Eric Raymond, who may not have coined the term "open source", but is > certainly the person primarily responsible for popularizing it. The > essay is about the DVDCCA and Napster, and while supporting the > DVDCCA, he *also* opines strongly that Napster is morally in the > wrong, precisely because it denies artists control over their works. > > http://lwn.net/2000/0803/a/big-lies.php3 > Well, as far as I'm concerned, Raymond is wrong. Society would be better off if the one-to-many communication model collapses, and I'm sorry if that hurts a few musicians and actors in the process. We'll just have to come back and pick up the pieces after the war's over. This isn't a fight over money. It's a fight over how society talks to itself. ... -- Sphere. Is DeCSS.c obscene? Why can't I read it? Can knowledge be forbidden? From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 26 10:51:11 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA10784 for dvd-discuss-outgoing; Sat, 26 Aug 2000 10:51:11 -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 KAA10781 for ; Sat, 26 Aug 2000 10:51:10 -0400 Received: from mediaone.net (h0060b03c5b8b.ne.mediaone.net [24.128.18.77]) by chmls06.mediaone.net (8.8.7/8.8.7) with ESMTP id KAA04968 for ; Sat, 26 Aug 2000 10:51:27 -0400 (EDT) Message-ID: <39A7D970.54114565@mediaone.net> Date: Sat, 26 Aug 2000 10:51:28 -0400 From: Sphere X-Mailer: Mozilla 4.73 [en] (WinNT; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] DVD CCA Opposition to Pavlovich Quash Motion 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 Erwin wrote: > > On Sat, 26 Aug 2000, Robert S. Thau wrote: > > > Well, here's an essay which could be used to help prove that the > > DVDCCA's statement, quoted above, is at least false. The author is > > Eric Raymond, who may not have coined the term "open source", but is > > certainly the person primarily responsible for popularizing it. The > > essay is about the DVDCCA and Napster, and while supporting the > > DVDCCA, he *also* opines strongly that Napster is morally in the > > wrong, precisely because it denies artists control over their works. > > > > http://lwn.net/2000/0803/a/big-lies.php3 > > > > Err, shouldn't that be "while supporting the fight against DVDCCA, he > *also* opines strongly that Napster is morally in the wrong..." > > Jeremy I figured reading that as "while not supporting..." myself. (Napster is not morally wrong. Short-sighted, but not morally wrong. Any concept of copyright which leads to concentration of power in the hands of a few is morally wrong. The notion of intellectual property is morally wrong. People communicating with each other many-to-many is _never_ morally wrong. It's democracy.) -- Sphere. Is DeCSS.c obscene? Why can't I read it? Can knowledge be forbidden? From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 26 11:09:31 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA10972 for dvd-discuss-outgoing; Sat, 26 Aug 2000 11:09:31 -0400 Received: from smtp05.primenet.com (smtp05.primenet.com [206.165.6.135]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id LAA10969 for ; Sat, 26 Aug 2000 11:09:30 -0400 Received: (from daemon@localhost) by smtp05.primenet.com (8.9.3/8.9.3) id IAA14556 for ; Sat, 26 Aug 2000 08:09:54 -0700 (MST) Received: from sessions.phx.primenet.com(206.132.239.114), claiming to be "heorot.lumbercartel.com" via SMTP by smtp05.primenet.com, id smtpdAAA33aWuC; Sat Aug 26 08:09:46 2000 Received: from frankenstein.lumbercartel.com (IDENT:dcs@frankenstein.lumbercartel.com [192.168.6.2]) by heorot.lumbercartel.com (8.9.3/8.8.7) with SMTP id IAA03974 for ; Sat, 26 Aug 2000 08:09:32 -0700 From: "D. C. Sessions" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] DVD CCA Opposition to Pavlovich Quash Motion Date: Sat, 26 Aug 2000 07:57:36 -0700 X-Mailer: KMail [version 1.0.29] Content-Type: text/plain References: <20000826025640.26814.qmail@web510.mail.yahoo.com> <39A73E81.C913D5B5@mediaone.net> In-Reply-To: <39A73E81.C913D5B5@mediaone.net> MIME-Version: 1.0 Message-Id: <00082607593600.27738@frankenstein.lumbercartel.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, 25 Aug 2000, Sphere wrote: > > I haven't visited Pavlovich's web page. Is it > "interactive"? The fact just about everything > I'm reading on this is commercial leads me to > believe he has a stronger than average claim... > If he isn't doing business at all on the Web > then he isn't doing business with CA. They don't claim that HE is doing business in CA. They're claiming that THEY do business in CA and his actions affect them. Which, as far as my IANAL self can tell, comes a very long way short of intentional access to the venue of CA. -- | Engineers solve problems -- it's what we do. | | Do you want to be a problem? | | D. C. Sessions === dcs@lumbercartel.com | From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 26 11:20:42 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA11103 for dvd-discuss-outgoing; Sat, 26 Aug 2000 11:20:42 -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 LAA11100 for ; Sat, 26 Aug 2000 11:20:41 -0400 Received: from mediaone.net (h0060b03c5b8b.ne.mediaone.net [24.128.18.77]) by chmls06.mediaone.net (8.8.7/8.8.7) with ESMTP id LAA12894 for ; Sat, 26 Aug 2000 11:20:58 -0400 (EDT) Message-ID: <39A7E05B.14FD9D66@mediaone.net> Date: Sat, 26 Aug 2000 11:20:59 -0400 From: Sphere X-Mailer: Mozilla 4.73 [en] (WinNT; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] DVD CCA Opposition to Pavlovich Quash Motion References: <20000826025640.26814.qmail@web510.mail.yahoo.com> <39A73E81.C913D5B5@mediaone.net> <00082607593600.27738@frankenstein.lumbercartel.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 "D. C. Sessions" wrote: > > On Fri, 25 Aug 2000, Sphere wrote: > > > > I haven't visited Pavlovich's web page. Is it > > "interactive"? The fact just about everything > > I'm reading on this is commercial leads me to > > believe he has a stronger than average claim... > > If he isn't doing business at all on the Web > > then he isn't doing business with CA. > > They don't claim that HE is doing business in CA. > They're claiming that THEY do business in CA and > his actions affect them. Which, as far as my IANAL > self can tell, comes a very long way short of > intentional access to the venue of CA. Their doing business in CA is a factor, but only one factor. As far as I can tell, it's the only factor. On the merits, they _ought_ to lose this one. -- Sphere. Is DeCSS.c obscene? Why can't I read it? Can knowledge be forbidden? From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 26 11:33:04 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA11265 for dvd-discuss-outgoing; Sat, 26 Aug 2000 11:33:04 -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 LAA11262 for ; Sat, 26 Aug 2000 11:33:04 -0400 Received: from mit.edu (h0050da62b39d.ne.mediaone.net [24.147.217.121]) by chmls06.mediaone.net (8.8.7/8.8.7) with ESMTP id LAA16149; Sat, 26 Aug 2000 11:33:21 -0400 (EDT) Message-ID: <39A7E3C1.6A6827AB@mit.edu> Date: Sat, 26 Aug 2000 11:35:29 -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 CCA Opposition to Pavlovich Quash Motion References: <200008260022.UAA00505@smtp6.mindspring.com> <39A70970.6CFFE505@mediaone.net> <200008260022.UAA00505@smtp6.mindspring.com> <2b6eqskb8kjf0jhfbvmo0p31ucgii4pmtk@4ax.com> <4.3.2.7.2.20000825212620.00a90e20@127.0.0.1> <20000826132338.A14649@ramtop.demon.co.uk> Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Phil Harrison wrote: > OK, is it purjery then? > > I declare under penalty of perjury under the laws of the State of California > that the foregoing is true and correct. Executed in Menlo Park, California on > August 18, 2000. > > [Signature] > Jean Wirdzek I doubt it. He's just the process server attesting to how he served the papers. - Ravi Nanavati From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 26 11:37:17 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA11356 for dvd-discuss-outgoing; Sat, 26 Aug 2000 11:37:17 -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 LAA11353 for ; Sat, 26 Aug 2000 11:37:16 -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 LAA07941 for ; Sat, 26 Aug 2000 11:37:34 -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 LAA01090 for dvd-discuss@eon.law.harvard.edu; Sat, 26 Aug 2000 11:37:34 -0400 Date: Sat, 26 Aug 2000 11:37:34 -0400 Message-Id: <200008261537.LAA01090@vvr09.ai.mit.edu> To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] DVD CCA Opposition to Pavlovich Quash Motion Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > Err, shouldn't that be "while supporting the fight against DVDCCA, he > *also* opines strongly that Napster is morally in the wrong..." Right. The typo monster strikes again. And for anyone who hasn't bothered to read the essay, the opposition to Napster, on moral and not legal grounds, is clear and unmistakable. He describes (most of the) music transferred by Napster as "other people's property", which they have a right to control --- a right which he argues that open source partisans should make a particular point of respecting, for both pragmatic and moral reasons. He also denounces "the Napster guys themselves" as "monstrous hypocrites." Which comes as no surprise to anyone who is familiar with Raymond's other writing --- for example, his "Magic Cauldron" essay *defends* traditional proprietary software licensing in certain cases, albeit limited ones. (Anyone who disagrees with this point of view is, of course, free to take it up with esr). rst From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 26 11:56:58 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA11437 for dvd-discuss-outgoing; Sat, 26 Aug 2000 11:56:58 -0400 Received: from mail.lemuria.org (lemuria.borgfelde.ricardo.de [195.244.103.65]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id LAA11434 for ; Sat, 26 Aug 2000 11:56:57 -0400 Received: from lemuria.org by mail.lemuria.org via rsmtp with bsmtp id for ; Sat, 26 Aug 2000 17:45:02 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Received: by lemuria.org via sendmail with stdio id for dvd-discuss@eon.law.harvard.edu; Sat, 26 Aug 2000 17:40:38 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Date: Sat, 26 Aug 2000 17:40:38 +0200 From: Tom Vogt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] DVD CCA Opposition to Pavlovich Quash Motion Message-ID: <20000826174038.B3056@lemuria.org> References: <200008260022.UAA00505@smtp6.mindspring.com> <39A70970.6CFFE505@mediaone.net> <2b6eqskb8kjf0jhfbvmo0p31ucgii4pmtk@4ax.com> <4.3.2.7.2.20000825212620.00a90e20@127.0.0.1> <20000826132338.A14649@ramtop.demon.co.uk> <200008261408.KAA13272@soggy-fibers.ai.mit.edu> <39A7D369.F54E32AE@mediaone.net> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0pre3i In-Reply-To: <39A7D369.F54E32AE@mediaone.net> X-Privacy: If you can, please encrypt your mails - finger for key Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Sphere wrote: > Well, as far as I'm concerned, Raymond is wrong. > Society would be better off if the one-to-many > communication model collapses, and I'm sorry if > that hurts a few musicians and actors in the > process. We'll just have to come back and pick > up the pieces after the war's over. This isn't > a fight over money. It's a fight over how > society talks to itself. and whether it can talk at all, without paying license fees to someone. remember that artists under contract of big labels own basically nothing of their works, and sometimes not even their own name (see prince). -- "The net treats censorship as a malfunction and re-routes around it." (John Gilmore) From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 26 12:40:40 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA11682 for dvd-discuss-outgoing; Sat, 26 Aug 2000 12:40:40 -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 MAA11679 for ; Sat, 26 Aug 2000 12:40:39 -0400 Received: from ppp.anonymizer.com (c04-075.015.popsite.net [64.24.75.75]) by cyberpass.net (8.8.8/8.7.3) with ESMTP id JAA19050; Sat, 26 Aug 2000 09:43:03 -0700 (PDT) Message-Id: <4.3.2.7.2.20000826093227.00b43770@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, 26 Aug 2000 09:40:50 -0700 To: dvd-discuss@eon.law.harvard.edu, dvd-discuss@eon.law.harvard.edu From: "James S. Tyre" Subject: Re: [dvd-discuss] DVD CCA Opposition to Pavlovich Quash Motion In-Reply-To: <39A7E3C1.6A6827AB@mit.edu> References: <200008260022.UAA00505@smtp6.mindspring.com> <39A70970.6CFFE505@mediaone.net> <200008260022.UAA00505@smtp6.mindspring.com> <2b6eqskb8kjf0jhfbvmo0p31ucgii4pmtk@4ax.com> <4.3.2.7.2.20000825212620.00a90e20@127.0.0.1> <20000826132338.A14649@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 At 11:35 AM 8/26/2000 -0400, Ravi Nanavati wrote: >Phil Harrison wrote: > > OK, is it purjery then? > > > > I declare under penalty of perjury under the laws of the State of > California > > that the foregoing is true and correct. Executed in Menlo Park, > California on > > August 18, 2000. > > > > [Signature] > > Jean Wirdzek > >I doubt it. He's just the process server attesting to how he served >the papers. > > - Ravi Nanavati Give that man a star! Here I was, still more than half-asleep on a lazy Saturday, pondering on how to answer, when Ravi came up with the obvious which I had, um, overlooked, not having read the thing since, um, last night. ;-) -------------------------------------------------------------------- James S. Tyre mailto:jstyre@jstyre.com 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 Aug 26 12:40:31 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA11673 for dvd-discuss-outgoing; Sat, 26 Aug 2000 12:40:31 -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 MAA11670 for ; Sat, 26 Aug 2000 12:40:30 -0400 Received: from ppp.anonymizer.com (c04-075.015.popsite.net [64.24.75.75]) by cyberpass.net (8.8.8/8.7.3) with ESMTP id JAA19019; Sat, 26 Aug 2000 09:42:53 -0700 (PDT) Message-Id: <4.3.2.7.2.20000826093823.00a9ee60@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, 26 Aug 2000 09:40:40 -0700 To: dvd-discuss@eon.law.harvard.edu, dvd-discuss@eon.law.harvard.edu From: "James S. Tyre" Subject: Re: [dvd-discuss] DVD CCA Opposition to Pavlovich Quash Motion In-Reply-To: <20000826174038.B3056@lemuria.org> References: <39A7D369.F54E32AE@mediaone.net> <200008260022.UAA00505@smtp6.mindspring.com> <39A70970.6CFFE505@mediaone.net> <2b6eqskb8kjf0jhfbvmo0p31ucgii4pmtk@4ax.com> <4.3.2.7.2.20000825212620.00a90e20@127.0.0.1> <20000826132338.A14649@ramtop.demon.co.uk> <200008261408.KAA13272@soggy-fibers.ai.mit.edu> <39A7D369.F54E32AE@mediaone.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 05:40 PM 8/26/2000 +0200, Tom Vogt wrote: >Sphere wrote: > > Well, as far as I'm concerned, Raymond is wrong. > > Society would be better off if the one-to-many > > communication model collapses, and I'm sorry if > > that hurts a few musicians and actors in the > > process. We'll just have to come back and pick > > up the pieces after the war's over. This isn't > > a fight over money. It's a fight over how > > society talks to itself. > >and whether it can talk at all, without paying license fees to someone. >remember that artists under contract of big labels own basically nothing of >their works, and sometimes not even their own name (see prince). Prince, the artist formerly known as the artist formerly known as Prince, is back to being known as Prince these days. But Tom is correct that the first fka came from a record co. dispute, not just Prince being weird (without regard to whether he is weird). -------------------------------------------------------------------- James S. Tyre mailto:jstyre@jstyre.com 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 Aug 26 12:56:32 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA11928 for dvd-discuss-outgoing; Sat, 26 Aug 2000 12:56:32 -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 MAA11925 for ; Sat, 26 Aug 2000 12:56:31 -0400 Message-ID: <20000826165619.13147.qmail@web513.mail.yahoo.com> Received: from [64.81.25.36] by web513.mail.yahoo.com; Sat, 26 Aug 2000 09:56:19 PDT Date: Sat, 26 Aug 2000 09:56:19 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] ok... To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-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: > [...] And remember that Marty's record in higher courts is rather > nice indeed. I've heard this refered to. Is there a way to get a list of the cases? > 1) The appeal is winnable, though not sure-fire; > 2) Even if this appeal is lost, it's just a battle, not the end of > the war; and surely this is a war. I think these are good points. I have no doubt that if we lose this, pretty soon some industry will clobber some other large grassroots organization with the DMCA. Over the long haul, it's just a matter of time until enough people hate the law so much that it will either be repealed, struck-down, substanitally modified, or completely ignored. When you say "this is a war", you are absolutely right. and folks, it could get ugly. I do not think that if the courts ultimately side with the MPAA that the studios will enjoy the resulting melee very much. What is happening is that freedom is being defined in the context of the information age. The old farts who run the show now are trying to apply pre-information age principles to exert control where it doesn't belong, and are moving increasing away from the will of the people. The US Constitutional system has survived for so long precisely because it is good at releasing tension. There are big forces at play here, but time is on our side. Eventually, come hell or highwater, our side will win the intellectual property wars. The absolute best and fastest way for this to happen is to demonstrate value and success in the "market". The DVD-CCA may SPEAK against open source movement, but in the final analysis they USE apache, don't they: http://www.netcraft.com/whats/?host=www.dvdcca.org __________________________________________________ Do You Yahoo!? Yahoo! Mail - Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 26 13:05:31 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA12033 for dvd-discuss-outgoing; Sat, 26 Aug 2000 13:05:31 -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 NAA12030 for ; Sat, 26 Aug 2000 13:05:28 -0400 Received: (from phil@localhost) by ramtop.demon.co.uk (8.9.3/8.9.3) id SAA15820 for dvd-discuss@eon.law.harvard.edu; Sat, 26 Aug 2000 18:02:02 +0100 Date: Sat, 26 Aug 2000 18:02:02 +0100 From: Phil Harrison To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] DVD CCA Opposition to Pavlovich Quash Motion Message-ID: <20000826180202.A15737@ramtop.demon.co.uk> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <200008260022.UAA00505@smtp6.mindspring.com> <39A70970.6CFFE505@mediaone.net> <200008260022.UAA00505@smtp6.mindspring.com> <2b6eqskb8kjf0jhfbvmo0p31ucgii4pmtk@4ax.com> <4.3.2.7.2.20000825212620.00a90e20@127.0.0.1> <20000826132338.A14649@ramtop.demon.co.uk> <39A7E3C1.6A6827AB@mit.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii Content-Disposition: inline User-Agent: Mutt/1.2.5i In-Reply-To: <39A7E3C1.6A6827AB@mit.edu>; from ravi_n@mit.edu on Sat, Aug 26, 2000 at 11:35:29AM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sat, Aug 26, 2000 at 11:35:29AM -0400, Ravi Nanavati wrote: > Phil Harrison wrote: > > OK, is it purjery then? > > > > I declare under penalty of perjury under the laws of the State of California > > that the foregoing is true and correct. Executed in Menlo Park, California on > > August 18, 2000. > > > > [Signature] > > Jean Wirdzek > > I doubt it. He's just the process server attesting to how he served > the papers. > Ah, excuse my ignorance :-). Perhaps instead, the best thing to do is to kick up a stink about the outrageous slur on the open source community. No doubt Eric Raymond and others will have something to say about this. -- Phil Harrison From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 26 13:10:32 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA12101 for dvd-discuss-outgoing; Sat, 26 Aug 2000 13:10:32 -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 NAA12098 for ; Sat, 26 Aug 2000 13:10:31 -0400 Received: from ip128.bedford3.ma.pub-ip.psi.net ([38.32.11.128]) by relay20.smtp.psi.net with smtp (Exim 3.13 #3) id 13SjTl-00073H-00 for dvd-discuss@eon.law.harvard.edu; Sat, 26 Aug 2000 13:10:49 -0400 From: Ron Gustavson To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Weil, Gotshal rant Date: Sat, 26 Aug 2000 13:04:19 -0400 Message-ID: References: <8gaeqskb3rjjgri7f2orlp1h99r293pl09@4ax.com> <200008261043.GAA04957@smtp10.atl.mindspring.net> In-Reply-To: <200008261043.GAA04957@smtp10.atl.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 NAA12099 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sat, 26 Aug 2000 06:35:29 -0400, John Young wrote: >Ron, > >Those are line numbers which were not properly edited >from the text by us after scanning the hardcopy. Corrections >have been made to those and a few others. > Whew, that's a relief. I thought standards were going to hell... __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 26 13:31:13 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA12230 for dvd-discuss-outgoing; Sat, 26 Aug 2000 13:31:13 -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 NAA12227 for ; Sat, 26 Aug 2000 13:31:12 -0400 Received: from ppp.anonymizer.com (c04-075.015.popsite.net [64.24.75.75]) by cyberpass.net (8.8.8/8.7.3) with ESMTP id KAA27098 for ; Sat, 26 Aug 2000 10:33:34 -0700 (PDT) Message-Id: <4.3.2.7.2.20000826101431.04b99930@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, 26 Aug 2000 10:31:21 -0700 To: dvd-discuss@eon.law.harvard.edu From: "James S. Tyre" Subject: Re: [dvd-discuss] ok... In-Reply-To: <20000826165619.13147.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 09:56 AM 8/26/2000 -0700, Bryan Taylor wrote: >--- "James S. Tyre" wrote: > > [...] And remember that Marty's record in higher courts is rather > > nice indeed. > >I've heard this refered to. Is there a way to get a list of the cases? For USSC, it's easy. Go to findlaw USSC cases, search "Garbus" or "Martin Garbus" in the full-text search field. That will return cases which have entries such as: "Martin Garbus argued the cause and filed a brief for appellees" from KING v. SMITH, 392 U.S. 309 (1968). (Picked at random.) For lower federal appellate courts and/or state courts (I don't know if he does state court work), the principle is the same, but as you know, coverage on the freely accessible Net is more spotty, and using the above as an example, note that he does not limit himself to cases coming through the Second Circuit, that case having come from Alabama. The most comprehensive method would be to do a national search using Wexis (lawyer shorthand for Lexis and/or Westlaw). In theory, I could do this with my Westlaw account; but it is a flat fee for California, Ninth Circuit and USSC, outrageous charges if I go outside of those databases, so I try not to unless really necessary. -------------------------------------------------------------------- James S. Tyre mailto:jstyre@jstyre.com 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 Aug 26 13:48:38 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA12391 for dvd-discuss-outgoing; Sat, 26 Aug 2000 13:48:38 -0400 Received: from mail.airbridge.net ([204.147.60.220]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id NAA12388 for ; Sat, 26 Aug 2000 13:48:37 -0400 Received: from agape.murphy.cx ([166.84.198.139]) by mail.airbridge.net (Netscape Messaging Server 3.6) with ESMTP id AAABBF for ; Sat, 26 Aug 2000 13:49:27 -0400 Received: (from murphy@localhost) by agape.murphy.cx (8.9.3/8.8.7) id NAA01917 for dvd-discuss@eon.law.harvard.edu; Sat, 26 Aug 2000 13:49:55 -0400 Date: Sat, 26 Aug 2000 13:49:55 -0400 From: Roy Murphy To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Appellate Review Standards [Was Re: Time Warner engaging in DeCSS linking] Message-ID: <20000826134955.A1014@agape.murphy.cx> References: <20000826042120.23209.qmail@web509.mail.yahoo.com> <39A7495F.34B73F58@mit.edu> <20000826100919.D2048@lemuria.org> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0pre3i In-Reply-To: <20000826100919.D2048@lemuria.org> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Yea, verily on Sat, Aug 26, 2000 at 10:09:19AM +0200, thus spake Tom Vogt: > Ravi Nanavati wrote: > > We have to remember there is a reason that Kaplan is not _completely_ > > in his own fantasy world here. Johansen was threatened with criminal > > prosecution and, > > he wasn't. jon was questioned by the policy but AFAIK no charges whatsoever > were ever made against him. But, he wouldn't have been questioned if he wasn't guilty, right? > also, the norwegian authorities went after him after being nicely "asked" > to do so by, guess who? the MPAA. the authorities even officially > APOLOGIZED later (something that seemingly never made the US news), and the > case was discussed in the norwegian parliament. everything in Norway seems > to strongly support jon. > > now authorities going after one expert witness after being pushed in that > direction by the plaintiffs, then using a twisted version of that fact as > evidence - given the fact that MPAA isn't stupid, let's assume they knew > precisely that their activities in Norway wouldn't get them anywhere. maybe > being able to claim "your witness is a criminal" was the #1 purpose of the > whole thing? All the facts support this position, unfortunately, we can only work with the facts in the record. -- 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 Sat Aug 26 14:13:26 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA12563 for dvd-discuss-outgoing; Sat, 26 Aug 2000 14:13:26 -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 OAA12560 for ; Sat, 26 Aug 2000 14:13:25 -0400 Received: from mediaone.net (h0060b03c5b8b.ne.mediaone.net [24.128.18.77]) by chmls06.mediaone.net (8.8.7/8.8.7) with ESMTP id OAA27423 for ; Sat, 26 Aug 2000 14:13:43 -0400 (EDT) Message-ID: <39A808D7.D8050525@mediaone.net> Date: Sat, 26 Aug 2000 14:13:43 -0400 From: Sphere X-Mailer: Mozilla 4.73 [en] (WinNT; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] DVD CCA Opposition to Pavlovich Quash Motion References: <200008260022.UAA00505@smtp6.mindspring.com> <39A70970.6CFFE505@mediaone.net> <2b6eqskb8kjf0jhfbvmo0p31ucgii4pmtk@4ax.com> <4.3.2.7.2.20000825212620.00a90e20@127.0.0.1> <20000826132338.A14649@ramtop.demon.co.uk> <200008261408.KAA13272@soggy-fibers.ai.mit.edu> <39A7D369.F54E32AE@mediaone.net> <20000826174038.B3056@lemuria.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 Tom Vogt wrote: > > Sphere wrote: > > Well, as far as I'm concerned, Raymond is wrong. > > Society would be better off if the one-to-many > > communication model collapses, and I'm sorry if > > that hurts a few musicians and actors in the > > process. We'll just have to come back and pick > > up the pieces after the war's over. This isn't > > a fight over money. It's a fight over how > > society talks to itself. > > and whether it can talk at all, without paying license fees to someone. > remember that artists under contract of big labels own basically nothing of > their works, and sometimes not even their own name (see prince). That's how they want society to talk to itself, by paying them a tax every time someone says something -- and occasionally preventing someone from saying something. > -- > "The net treats censorship as a malfunction and re-routes around it." > (John Gilmore) -- Sphere. Is DeCSS.c obscene? Why can't I read it? Can knowledge be forbidden? From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 26 14:32:59 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA12756 for dvd-discuss-outgoing; Sat, 26 Aug 2000 14:32:59 -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 OAA12753 for ; Sat, 26 Aug 2000 14:32:57 -0400 Message-ID: <20000826183245.23212.qmail@web509.mail.yahoo.com> Received: from [64.81.25.36] by web509.mail.yahoo.com; Sat, 26 Aug 2000 11:32:45 PDT Date: Sat, 26 Aug 2000 11:32:45 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] Appellate Review Standards [Was Re: Time Warner engaging in DeCSS linking] To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --- Roy Murphy wrote: > All the facts support this position, unfortunately, we can only work > with the facts in the record. Well, the shortarge of facts in the record cuts both ways: - the record does not contain the eventual outcome in Norway - the record does not contain evidence of "arrest" - the record does not contain evidence of conviction: for all we know based on the record, Johansen could have been exonerated and given an apology and an award by his governement. I think you can get the point across by asking the court to take "judicial notice" of the subsequent events there, or even ask for a remand specifically for this purpose if it was relied on prejudiced the result. Even if the appeals court refused to do this, it would get the point across. __________________________________________________ Do You Yahoo!? Yahoo! Mail - Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 26 14:40:04 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA12901 for dvd-discuss-outgoing; Sat, 26 Aug 2000 14:40:04 -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 OAA12898 for ; Sat, 26 Aug 2000 14:40:04 -0400 Received: from ip128.bedford3.ma.pub-ip.psi.net ([38.32.11.128]) by relay20.smtp.psi.net with smtp (Exim 3.13 #3) id 13SksP-0007RZ-00 for dvd-discuss@eon.law.harvard.edu; Sat, 26 Aug 2000 14:40:22 -0400 From: Ron Gustavson To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] DVD CCA Opposition to Pavlovich Quash Motion Date: Sat, 26 Aug 2000 14:33:55 -0400 Message-ID: <083gqsom9s4km4d0s8g33aml09cgaqdfvo@4ax.com> References: <39A70970.6CFFE505@mediaone.net> <200008260022.UAA00505@smtp6.mindspring.com> In-Reply-To: X-Mailer: Forte Agent 1.8/32.548 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 OAA12899 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I wrote: > | As is often noted, "one who intentionally shoots a bullet into a state > | is as subject to the judicial jurisdiction of [that] state ... as if he had > | actually fired the bullet in the state." See, e.g., Schlussel v. Schlussel, > | 141 20 21 Cal.App.3d 194, 197 (citing Restatement Second of > | Conflict of Laws, § 37). > >Wow. Amazing. Using this analogy of the Internet.... > >This a hundred times worse than the porn dispute between San Jose >and Memphis which I think eventually led to the CDA.(? help me out here) I was thinking of US vs Thomas, http://www.law.emory.edu/6circuit/jan96/96a0032p.06.html , which I believe was part of the justification for the CDA(?) __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 26 14:44:33 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA13040 for dvd-discuss-outgoing; Sat, 26 Aug 2000 14:44:33 -0400 Received: from dial150.roadrunner.com (dial150.cybermesa.com [209.12.75.150] (may be forged)) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id OAA13037 for ; Sat, 26 Aug 2000 14:44:31 -0400 Received: (from paul@localhost) by dial150.roadrunner.com (8.8.7/8.8.7) id MAA01402 for dvd-discuss@eon.law.harvard.edu; Sat, 26 Aug 2000 12:46:20 -0600 Date: Sat, 26 Aug 2000 12:46:19 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] DVD-CCA's unclean hands Message-ID: <20000826124619.A1300@localhost> References: <20000826165619.13147.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: <20000826165619.13147.qmail@web513.mail.yahoo.com>; from bryan_w_taylor@yahoo.com on Sat, Aug 26, 2000 at 09:56:19AM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sat, Aug 26, 2000 at 09:56:19AM -0700, Bryan Taylor wrote: > Eventually, come hell or highwater, our side will win the intellectual > property wars. The absolute best and fastest way for this to happen is > to demonstrate value and success in the "market". The DVD-CCA may SPEAK > against open source movement, but in the final analysis they USE > apache, don't they: > > http://www.netcraft.com/whats/?host=www.dvdcca.org This is important. Will a court agree? This turns their "OpenSource/Free software is the devil" argument into so much confetti. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 26 14:55:14 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA13121 for dvd-discuss-outgoing; Sat, 26 Aug 2000 14:55:14 -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 OAA13118 for ; Sat, 26 Aug 2000 14:55:13 -0400 Received: from ip128.bedford3.ma.pub-ip.psi.net ([38.32.11.128]) by relay20.smtp.psi.net with smtp (Exim 3.13 #3) id 13Sl75-0007Ts-00 for dvd-discuss@eon.law.harvard.edu; Sat, 26 Aug 2000 14:55:31 -0400 From: Ron Gustavson To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] DVD CCA Opposition to Pavlovich Quash Motion Date: Sat, 26 Aug 2000 14:49:04 -0400 Message-ID: References: <200008260022.UAA00505@smtp6.mindspring.com> <39A70970.6CFFE505@mediaone.net> <2b6eqskb8kjf0jhfbvmo0p31ucgii4pmtk@4ax.com> <4.3.2.7.2.20000825212620.00a90e20@127.0.0.1> <20000826132338.A14649@ramtop.demon.co.uk> <200008261408.KAA13272@soggy-fibers.ai.mit.edu> <39A7D369.F54E32AE@mediaone.net> <20000826174038.B3056@lemuria.org> <39A808D7.D8050525@mediaone.net> In-Reply-To: <39A808D7.D8050525@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 OAA13119 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sat, 26 Aug 2000 14:13:43 -0400, Sphere wrote: >> and whether it can talk at all, without paying license fees to someone. >> remember that artists under contract of big labels own basically nothing of >> their works, and sometimes not even their own name (see prince). > > >That's how they want society to talk to >itself, by paying them a tax every time >someone says something -- and occasionally >preventing someone from saying something. > Don't worry, they'll get right with Internet 2. Remember this was on the drawing board when the Internet (1) accidentally became available to the jokers who pay the bills. I think Nynex or ATT was (with support from NTIIA) working on an amazing system where, for about four dollars, you could, like, call an 800# and find out when a flight was scheduled (imagine!) __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 26 15:20:29 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA13662 for dvd-discuss-outgoing; Sat, 26 Aug 2000 15:20:29 -0400 Received: from mercury.clearway.com (c100.clearway.com [199.103.231.100]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA13659 for ; Sat, 26 Aug 2000 15:20:28 -0400 Received: by c100.clearway.com with Internet Mail Service (5.5.2650.21) id ; Sat, 26 Aug 2000 15:24:04 -0400 Message-ID: From: Leland Ray To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] Appellate Review Standards [Was Re: TimeWarner engaging in DeCSS linking] Date: Sat, 26 Aug 2000 15:23:56 -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 One basic problem with the defense case is that there was no expert on software development practice. One of the elements of portanble software is that developments on one platform work pretty much unchanged on all, and anyone doing serious open source development will try to write portable code (unless, of course, they are working on machine specific things, but that is rare). Having a good understanding of software development practice will also help beat one of the most obnoxious editorial comments in the whole decision -- that defendants are part of a movement that believe all information should be free. -----Original Message----- From: Ravi Nanavati [mailto:ravi_n@mit.edu] Sent: Saturday, August 26, 2000 12:03 AM To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Appellate Review Standards [Was Re: TimeWarner engaging in DeCSS linking] On the other hand, the sentence quoted doesn't really dispute Johansen's claim, unless you have a completely broken idea about how open-source development actually works. While there are "Linux development groups" one of the points of bazaar-style open-source is that people can contribute to, join and/or leave these groups whenever they feel like, so you can build mountains with many small contributions. Kaplan doesn't dispute that the "technical breakthroughs" went through Johansen to "Linux development groups", and Johansen explained the non-open-source-traditional aspects of DeCSS in his testimony, so ... From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 26 15:32:36 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA14152 for dvd-discuss-outgoing; Sat, 26 Aug 2000 15:32:36 -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 PAA14149 for ; Sat, 26 Aug 2000 15:32:35 -0400 Message-ID: <20000826193224.28314.qmail@web509.mail.yahoo.com> Received: from [64.81.25.36] by web509.mail.yahoo.com; Sat, 26 Aug 2000 12:32:23 PDT Date: Sat, 26 Aug 2000 12:32:23 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] DVD CCA Opposition to Pavlovich Quash Motion To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --- Ron Gustavson wrote: > >This a hundred times worse than the porn dispute between San Jose > >and Memphis which I think eventually led to the CDA.(? help me out > >here) > > I was thinking of US vs Thomas, > http://www.law.emory.edu/6circuit/jan96/96a0032p.06.html , > which I believe was part of the justification for the CDA(?) I remember that case. It's the one about the "Amature Action" BBS. It was a big deal at the time. I remember discussing it on an internet news group :-] I thought it was a travesty, in multiple ways. I think the Supreme Court's idea that obsenity isn't speech is itself obscene, but that's another matter. What I don't understand is why internet pornography flourished after this case. There is some sick, sick, sick stuff out there. If this case is still good law, I don't understand why there weren't more cases like this. Did the CDA and COPA cases undercut US v Thomas? Or did something else? __________________________________________________ Do You Yahoo!? Yahoo! Mail - Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 26 15:36:11 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA14248 for dvd-discuss-outgoing; Sat, 26 Aug 2000 15:36:11 -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 PAA14245 for ; Sat, 26 Aug 2000 15:36:10 -0400 Received: (qmail 18107 invoked by uid 60001); 26 Aug 2000 19:36:28 -0000 Message-ID: <20000826193628.18106.qmail@web106.yahoomail.com> Received: from [128.122.253.144] by web106.yahoomail.com; Sat, 26 Aug 2000 12:36:28 PDT Date: Sat, 26 Aug 2000 12:36:28 -0700 (PDT) From: "Tuyet A. Ngoc Tran" Subject: [dvd-discuss] Fwd: Wired News : Napster's New Friends To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Just a thought although slightly unrelated but note who are supporting Napster. ------------- > From Wired News, available online at: > http://www.wired.com/news/print/0,1294,38456,00.html > > Napster's New Friends > by Brad King > > 4:40 p.m. Aug. 25, 2000 PDT > > Several trade groups filed friend-of-the-court > briefs today with the > Ninth Circuit Court of Appeals disputing claims made > by Judge Marilyn > Patel, who ruled against Napster in a case brought > by the recording industry. > > The Consumer Electronics Association came out in > support of Napster in > the company's legal battle, arguing that Patel > misinterpreted the 1984 Sony Betamax case. > > "We are supporting the Napster position in that > Patel made a mistake," > CEA president Gary Shapiro said. "She made a whole > new standard for > 'non-infringing uses' since there are legitimate > uses for Napster. > Even if the Napster application is used for > infringement, that doesn't > mean there aren't legitimate uses for it as well." > > While the Digital Media Association essentially > agrees with the spirit > of the CEA brief regarding Patel's ruling, the group > wasn't prepared to support Napster. > > In its brief, DiMA argues that Patel abandoned the > "non-infringing > use" test when determining the legality of a > technology. Also at issue > is her separation of manufactured goods, such as a > VCR, and a service, > such as a digital application. > > "The issue is whether a technology has ... policing > obligations if > it’s a product versus a service," said Jonathan > Potter, DiMA's > executive director. "We are very concerned about > that reasoning." > > The association represents over 60 companies, > including America Online > (AOL), Yahoo (YHOO), and Riffage. > > On July 26, Patel issued a temporary injunction that > would have shut > Napster down, in part on the basis that since the > software application > essentially remained in the hands of the creators, > the corporation had > the responsibility of searching for illegal activity. > > Less than two days later, the appeals court granted > the company a stay > while the court examined Patel's ruling. > > Napster's lawyers filed its legal brief's on August > 18. The recording > industry has until September 8 to respond. __________________________________________________ Do You Yahoo!? Yahoo! Mail - Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 26 15:41:47 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA14291 for dvd-discuss-outgoing; Sat, 26 Aug 2000 15:41:47 -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 PAA14288 for ; Sat, 26 Aug 2000 15:41:46 -0400 Received: from travel-net.com (trj108.travel-net.com [207.176.160.108]) by mail.travel-net.com (8.9.3/8.9.3) with ESMTP id PAA14385 for ; Sat, 26 Aug 2000 15:42:10 -0400 Message-ID: <39A81D66.65A2C2A7@travel-net.com> Date: Sat, 26 Aug 2000 15:41:26 -0400 From: Dan Steinberg 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] Appellate Review Standards [Was Re: TimeWarner engaging in DeCSS linking] 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 Leland Ray wrote: > One basic problem with the defense case is that there was no > expert on software development practice. > > One of the elements of portanble software is that developments > on one platform work pretty much unchanged on all, and anyone > doing serious open source development will try to write portable > code (unless, of course, they are working on machine specific > things, but that is rare). > > Having a good understanding of software development practice > will also help beat one of the most obnoxious editorial comments > in the whole decision -- that defendants are part of a movement > that believe all information should be free. Well since that comment came out of nowhere right in the judgement, I don't see how having an expert on software development could have helped. Did anyone here think that would be an appropriate question to ask a witness or expert? Its great to have 20-20 hindsight but sometimes you simply get blindsided. Now that we have seen Kaplan in action I'm sure we could all think of things he didnt say that we might have had to defend against. On a more general note, I re-read Kaplan's decision last night. While I was still annoyed and stuff he said, comparing it to other decisions, I don't think he was that different. A judge gets to render a decision and he/she has a tendency to paint things in an extreme light in order to solidify the decision. No judge is gonna say, "well it was really close and I considered flipping a coin, but found this teeny tiny reason to hang my decision on" No, they will paint things in black and white. I find its more common in criminal cases I read but still happens. Call it human nature perhaps? Dan Steinberg Synthesis: Law & Technology 613.794.5356 > > > -----Original Message----- > From: Ravi Nanavati [mailto:ravi_n@mit.edu] > Sent: Saturday, August 26, 2000 12:03 AM > To: dvd-discuss@eon.law.harvard.edu > Subject: Re: [dvd-discuss] Appellate Review Standards [Was Re: > TimeWarner engaging in DeCSS linking] > > On the other hand, the sentence quoted doesn't really dispute Johansen's > claim, unless you have a completely broken idea about how open-source > development actually works. While there are "Linux development groups" one > of the points of bazaar-style open-source is that people can contribute to, > join and/or leave these groups whenever they feel like, so you can build > mountains with many small contributions. Kaplan doesn't dispute that the > "technical breakthroughs" went through Johansen to "Linux development > groups", and Johansen explained the non-open-source-traditional aspects > of DeCSS in his testimony, so ... From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 26 15:53:33 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA14379 for dvd-discuss-outgoing; Sat, 26 Aug 2000 15:53:33 -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 PAA14376 for ; Sat, 26 Aug 2000 15:53:32 -0400 Message-ID: <20000826195320.584.qmail@web511.mail.yahoo.com> Received: from [64.81.25.36] by web511.mail.yahoo.com; Sat, 26 Aug 2000 12:53:20 PDT Date: Sat, 26 Aug 2000 12:53:20 -0700 (PDT) From: Bryan Taylor Subject: [dvd-discuss] Penguinista.com articles To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-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 first article says some dubious things about the First Amendment defense, but it's point is sound: we should be using antitrust more. http://www.penguinista.org/cgi-bin/article?articleId=333&showBody=Y I really think the EFF needs to go on the offensive here. Take Pavlovich on as a client, and file suit in the 5th Circuit against the DVD-CCA, MPAA, and maybe Microsoft too for antitrust violations, misuse of copyright, lack of trade secret protection via Federal Copyright Act preemption and to get a declaritory judgement that LiViD meets DMCA muster. There's also an article taking issue with Wired's coverage on the linking ruling: http://www.penguinista.org/cgi-bin/article?articleId=332&showBody=Y __________________________________________________ Do You Yahoo!? Yahoo! Mail - Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 26 16:01:39 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA14517 for dvd-discuss-outgoing; Sat, 26 Aug 2000 16:01:39 -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 QAA14514 for ; Sat, 26 Aug 2000 16:01:38 -0400 Received: from ppp.anonymizer.com (c04-075.015.popsite.net [64.24.75.75]) by cyberpass.net (8.8.8/8.7.3) with ESMTP id NAA19044 for ; Sat, 26 Aug 2000 13:03:58 -0700 (PDT) Message-Id: <4.3.2.7.2.20000826123320.00b61f00@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, 26 Aug 2000 12:54:33 -0700 To: dvd-discuss@eon.law.harvard.edu From: "James S. Tyre" Subject: Re: [dvd-discuss] ok... In-Reply-To: <4.3.2.7.2.20000826101431.04b99930@127.0.0.1> References: <20000826165619.13147.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 10:31 AM 8/26/2000 -0700, James S. Tyre wrote: >At 09:56 AM 8/26/2000 -0700, Bryan Taylor wrote: > >>--- "James S. Tyre" wrote: >> > [...] And remember that Marty's record in higher courts is rather >> > nice indeed. >> >>I've heard this refered to. Is there a way to get a list of the cases? > >For USSC, it's easy. Go to findlaw USSC cases, I should qualify what I wrote a bit. Findlaw and other free Net sources of law are wonderful, but even within their coverage areas, I would not fully rely on them for critical research. I've done findlaw searches where I knew that one of the returned results should be case X, but case X was not returned. So, without cross-checking, I suppose I cannot be certain if findlaw will return a complete list of all cases Marty has argued or briefed in the USSC. [And a special note to Bryan, since methinks he is curious enough to search me. ;-) The lack of USSC returns on my name is accurate. I would like the privilege of arguing in that court some day, but it hasn't happened yet.] -------------------------------------------------------------------- James S. Tyre mailto:jstyre@jstyre.com 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 Aug 26 16:01:19 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA14509 for dvd-discuss-outgoing; Sat, 26 Aug 2000 16:01:19 -0400 Received: from mercury.clearway.com (c100.clearway.com [199.103.231.100]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id QAA14506 for ; Sat, 26 Aug 2000 16:01:18 -0400 Received: by c100.clearway.com with Internet Mail Service (5.5.2650.21) id ; Sat, 26 Aug 2000 16:04:54 -0400 Message-ID: From: Leland Ray To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] ok... Date: Sat, 26 Aug 2000 16:04:48 -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 I actually fantasized last night about 30 second spots about the case, and how we ought to send Congress a message this fall (toss the guilty ones out!). Heck, running a few ads on cable TV systems (where they are cheap) and naming politicians by name scares them more than campaign finance reform. Think about it. With a small camera and even a half decent computer work out an mpeg or qt thing, and then distribute them over a few web pages (allow unlimited copying) then a few private citizens with net cash buy some cable time...damn I wish I weren't trying to drive the wolves from my door right now, and didn't have to work... From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 26 16:25:44 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA14619 for dvd-discuss-outgoing; Sat, 26 Aug 2000 16:25:44 -0400 Received: from smtp05.primenet.com (smtp05.primenet.com [206.165.6.135]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id QAA14616 for ; Sat, 26 Aug 2000 16:25:42 -0400 Received: (from daemon@localhost) by smtp05.primenet.com (8.9.3/8.9.3) id NAA21923 for ; Sat, 26 Aug 2000 13:26:09 -0700 (MST) Received: from sessions.phx.primenet.com(206.132.239.114), claiming to be "heorot.lumbercartel.com" via SMTP by smtp05.primenet.com, id smtpdAAAGuayYQ; Sat Aug 26 13:26:00 2000 Received: from frankenstein.lumbercartel.com (IDENT:dcs@frankenstein.lumbercartel.com [192.168.6.2]) by heorot.lumbercartel.com (8.9.3/8.8.7) with SMTP id NAA04803 for ; Sat, 26 Aug 2000 13:25:18 -0700 From: "D. C. Sessions" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Appellate Review Standards [Was Re: TimeWarner engaging in DeCSS linking] Date: Sat, 26 Aug 2000 13:21:33 -0700 X-Mailer: KMail [version 1.0.29] Content-Type: text/plain References: <39A81D66.65A2C2A7@travel-net.com> In-Reply-To: <39A81D66.65A2C2A7@travel-net.com> MIME-Version: 1.0 Message-Id: <00082613251600.28089@frankenstein.lumbercartel.com> Content-Transfer-Encoding: 8bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sat, 26 Aug 2000, Dan Steinberg wrote: > Well since that comment came out of nowhere right in the judgement, I don't see > how having an expert on software development could have helped. Did anyone here > think that would be an appropriate question to ask a witness or expert? Its > great to have 20-20 hindsight but sometimes you simply get blindsided. Now that > we have seen Kaplan in action I'm sure we could all think of things he didnt > say that we might have had to defend against. Help me with this. As I remember my civics courses, the idea is that the Court decides based on the law but especially based on what's presented in court. That is, the defense is supposed to have a chance to counter the facts that underlie the decision, not to have them come out of the Judge's cereal box. I also thought that the Court was supposed to depend in large part on legal arguments presented by the two sides, for the same reason, rather than coming up with arguments of its own after close that neither side has a chance to rebut. -- | Engineers solve problems -- it's what we do. | | Do you want to be a problem? | | D. C. Sessions === dcs@lumbercartel.com | From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 26 16:37:25 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA14765 for dvd-discuss-outgoing; Sat, 26 Aug 2000 16:37:25 -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 QAA14762 for ; Sat, 26 Aug 2000 16:37:24 -0400 Received: from ip62.bedford3.ma.pub-ip.psi.net ([38.32.11.62]) by relay21.smtp.psi.net with smtp (Exim 3.13 #3) id 13Smhu-000206-00 for dvd-discuss@eon.law.harvard.edu; Sat, 26 Aug 2000 16:37:38 -0400 From: Ron Gustavson To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Penguinista.com articles Date: Sat, 26 Aug 2000 16:31:11 -0400 Message-ID: <16agqsoldjji7g004e48t2s41md0r1ec1l@4ax.com> References: <20000826195320.584.qmail@web511.mail.yahoo.com> In-Reply-To: <20000826195320.584.qmail@web511.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 QAA14763 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sat, 26 Aug 2000 12:53:20 -0700 (PDT), Bryan Taylor wrote: >I really think the EFF needs to go on the offensive here. Take >Pavlovich on as a client, and file suit in the 5th Circuit against the >DVD-CCA, MPAA, and maybe Microsoft too for antitrust violations, misuse To be fair, you'd have to add Apple too. __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 26 17:11:49 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA16104 for dvd-discuss-outgoing; Sat, 26 Aug 2000 17:11:49 -0400 Received: from mercury.clearway.com (c100.clearway.com [199.103.231.100]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA16101 for ; Sat, 26 Aug 2000 17:11:48 -0400 Received: by c100.clearway.com with Internet Mail Service (5.5.2650.21) id ; Sat, 26 Aug 2000 17:15:24 -0400 Message-ID: From: Leland Ray To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] Appellate Review Standards [Was Re: TimeWarner engaging in DeCSS linking] Date: Sat, 26 Aug 2000 17:15:20 -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 Absolutely software process development was considered in this list, with myself (and others) writing about it. The problem with such an expert would be to set up the testimony to pass relevancy. One of the things that the MPAA did very effectively was to eliminate defense arguments. The hindsight is all the stuff with DIVX should have been tossed as irrelevant. Whether or not something is a circumvention device has nothing to do with compression technologies and network transfer. -----Original Message----- From: Dan Steinberg [mailto:dstein@travel-net.com] Sent: Saturday, August 26, 2000 3:41 PM To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Appellate Review Standards [Was Re: TimeWarner engaging in DeCSS linking] Well since that comment came out of nowhere right in the judgement, I don't see how having an expert on software development could have helped. Did anyone here think that would be an appropriate question to ask a witness or expert? From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 26 17:26:50 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA16244 for dvd-discuss-outgoing; Sat, 26 Aug 2000 17:26:50 -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 RAA16241 for ; Sat, 26 Aug 2000 17:26:49 -0400 Received: from travel-net.com (trj108.travel-net.com [207.176.160.108]) by mail.travel-net.com (8.9.3/8.9.3) with ESMTP id RAA17267 for ; Sat, 26 Aug 2000 17:27:15 -0400 Message-ID: <39A83606.C89342B6@travel-net.com> Date: Sat, 26 Aug 2000 17:26:30 -0400 From: Dan Steinberg 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] Appellate Review Standards [Was Re: TimeWarner engaging in DeCSS linking] References: <39A81D66.65A2C2A7@travel-net.com> <00082613251600.28089@frankenstein.lumbercartel.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 "D. C. Sessions" wrote: > On Sat, 26 Aug 2000, Dan Steinberg wrote: > > > Well since that comment came out of nowhere right in the judgement, I don't see > > how having an expert on software development could have helped. Did anyone here > > think that would be an appropriate question to ask a witness or expert? Its > > great to have 20-20 hindsight but sometimes you simply get blindsided. Now that > > we have seen Kaplan in action I'm sure we could all think of things he didnt > > say that we might have had to defend against. > > Help me with this. As I remember my civics courses, the idea is that the Court > decides based on the law but especially based on what's presented in court. > That is, the defense is supposed to have a chance to counter the facts that > underlie the decision, not to have them come out of the Judge's cereal box. > > I also thought that the Court was supposed to depend in large part on legal > arguments presented by the two sides, for the same reason, rather than coming > up with arguments of its own after close that neither side has a chance to > rebut. Well 'tis true but..... If you read the case carefully I think you will find that you can omit all the *new* stuff and still find a decision supported by facts and law. we may not like the decsion. we may disagree with the interpretation of facts/law but it is supported. Theres a difference between saying " Joe is obviously a sleaze and there are unimpeachable witnesses to his crime" and "Joe is a sleaze so I figger he musta done it". > > > -- > | Engineers solve problems -- it's what we do. | > | Do you want to be a problem? | > | D. C. Sessions === dcs@lumbercartel.com | From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 26 17:46:50 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA16411 for dvd-discuss-outgoing; Sat, 26 Aug 2000 17:46:50 -0400 Received: from mail.lemuria.org (lemuria.borgfelde.ricardo.de [195.244.103.65]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id RAA16408 for ; Sat, 26 Aug 2000 17:46:49 -0400 Received: from lemuria.org by mail.lemuria.org via rsmtp with bsmtp id for ; Sat, 26 Aug 2000 23:39:49 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Received: by lemuria.org via sendmail with stdio id for dvd-discuss@eon.law.harvard.edu; Sat, 26 Aug 2000 22:50:09 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Date: Sat, 26 Aug 2000 22:50:09 +0200 From: Tom Vogt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] DVD-CCA's unclean hands Message-ID: <20000826225009.A4049@lemuria.org> References: <20000826165619.13147.qmail@web513.mail.yahoo.com> <20000826124619.A1300@localhost> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0pre3i In-Reply-To: <20000826124619.A1300@localhost> X-Privacy: If you can, please encrypt your mails - finger for key Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Paul Fenimore wrote: > > to demonstrate value and success in the "market". The DVD-CCA may SPEAK > > against open source movement, but in the final analysis they USE > > apache, don't they: > > > > http://www.netcraft.com/whats/?host=www.dvdcca.org > > This is important. Will a court agree? This turns their > "OpenSource/Free software is the devil" argument into so much > confetti. if I recall correctly, DVD CCA is a pretty small company. I doubt they run their own webservers. most likely, they're hosted somewhere. the whois entry for dvdcca.org contains someone at kavi.com as technical contact, and kavi.com is a web-hosting company. interesting random find: dvdcca was registered when mr. hoy was still at toshiba. -- "The net treats censorship as a malfunction and re-routes around it." (John Gilmore) From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 26 17:47:56 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA16461 for dvd-discuss-outgoing; Sat, 26 Aug 2000 17:47:56 -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 RAA16456 for ; Sat, 26 Aug 2000 17:47:55 -0400 Received: from ip62.bedford3.ma.pub-ip.psi.net ([38.32.11.62]) by relay21.smtp.psi.net with smtp (Exim 3.13 #3) id 13SnoD-0002L6-00 for dvd-discuss@eon.law.harvard.edu; Sat, 26 Aug 2000 17:48:13 -0400 From: Ron Gustavson To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] DVD CCA Opposition to Pavlovich Quash Motion Date: Sat, 26 Aug 2000 17:41:46 -0400 Message-ID: References: <20000826193224.28314.qmail@web509.mail.yahoo.com> In-Reply-To: <20000826193224.28314.qmail@web509.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 RAA16459 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sat, 26 Aug 2000 12:32:23 -0700 (PDT), Bryan Taylor wrote: >I remember that case. It's the one about the "Amature Action" BBS. It >was a big deal at the time. I remember discussing it on an internet >news group :-] I thought it was a travesty, in multiple ways. I think >the Supreme Court's idea that obsenity isn't speech is itself obscene, >but that's another matter. My point was the jusidiction was questioned there. The court found the Thomases (of Milpitas, CA) guilty of not abiding by the community decency standards of western TN. This is an area that the MPA may not want to revisit, lest they one day be held accountable to Taliban standards. And, being that it was a dial-up BBS, it was pre-Internet. I see "shooting a bullet into the state" as an attack on the nature of the Internet itself. You have to take the bullets with the gold coins. If DVDCCA wants to sue to disconnect California from the Internet, that might be an option. __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 26 18:03:24 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA16582 for dvd-discuss-outgoing; Sat, 26 Aug 2000 18:03:24 -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 SAA16579 for ; Sat, 26 Aug 2000 18:03:12 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id SAA09093 for dvd-discuss@eon.law.harvard.edu; Sat, 26 Aug 2000 18:12:31 -0400 Date: Sat, 26 Aug 2000 18:12:26 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Clickwrap Contracts [was: code as speech] Message-ID: <20000826181226.C6634@eldritchpress.org> References: <20000821165929.21415.qmail@web512.mail.yahoo.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <20000821165929.21415.qmail@web512.mail.yahoo.com>; from bryan_w_taylor@yahoo.com on Mon, Aug 21, 2000 at 09:59:29AM -0700 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Sorry, I'm trying to catch up with an immense amount of back email. See the bottom--> On Mon, Aug 21, 2000 at 09:59:29AM -0700, Bryan Taylor wrote: > > --- Daniel Richards wrote: > > -----BEGIN PGP SIGNED MESSAGE----- > > FIrst of all, isn't REing LEGAL in Norway? I've heard that over there > > it's a right that can't be uspered by any kind of "shrink-wrap" > > "contracts". Also, Jon was 15 at the time DeCSS was released, > > arn't minors not allowed to agree to legal binding contracts > > (then you get to the issue of are click-thru licenses legally.. > > at least not here they arn't (NZ)). > > I believe that the clickwrap licence says two important things: that > California law governs disputes arizing under it and that you can't > reverse engineer the product. > > The question starts with contract analysis under multi-national > jurisdiction: > > 1. When the offerer and offeree are in different coutnries, which law > governs contract formation? > > Once jurisdiction is determined, contract foundation is the issue: > 2. Is the foundation for a contract there: > - valid offer (I call it 'attack by offer' when rejecting offer > requires resources. Is the offer procedurally unconscionable) > - valid acceptance (must you communicate/manifest your assent?) > - valid parties (can minors form contracts?) > - The relation to the contract of sale must be classified (does it > modifiy it or create a second distinct contrac?) > - valid consideration (what exactly is given up by Xing? Depends on > the previous question) > > 3. If you conclude that there is mutual assent to create a binding > contract, then you turn to its terms: > - Does Norwegian law preempt the choice of California forum clause? > - Does Norwegian law preempt the no reverse engineering clause? > - If CA law applies does the US Federal copyright act preempt the > no reverse engineering clause > > The DVD-CCA has to get a favorable decision on ALL of the above to > BEGIN a CA state law claim for misappropriation via breach of contract. > To win against the defendents they also need to show that each > defendant should have known there was missappropriation, which requires > that each should have known the answer to the above chain of questions. > They must also get around the First Amendment vs. trade secret choke > point. In addition, under point (3) you should add: - Does a contract made under California law supersede the Uniform Trade Secrets Act that is California law, and which explicitly says that "reverse engineering and independent creation" are NOT "improper means" under trade secret law? In other words, can the contract override the law--can a Texas or Norwegian resident lawfully contract to this limitation overriding the law in California as well as the law in Texas or Norway? I don't really think the case needs to be moved to federal court. But if it is moved to federal court, it would be better to have it heard in Texas, Matt's state, since then Vault v Quaid could be used in addition to the other arguments. From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 26 18:22:36 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA16760 for dvd-discuss-outgoing; Sat, 26 Aug 2000 18:22:36 -0400 Received: from smtp04.primenet.com (smtp04.primenet.com [206.165.6.134]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id SAA16757 for ; Sat, 26 Aug 2000 18:22:34 -0400 Received: (from daemon@localhost) by smtp04.primenet.com (8.9.3/8.9.3) id PAA01787 for ; Sat, 26 Aug 2000 15:20:56 -0700 (MST) Received: from sessions.phx.primenet.com(206.132.239.114), claiming to be "heorot.lumbercartel.com" via SMTP by smtp04.primenet.com, id smtpdAAAtXaOsd; Sat Aug 26 15:20:43 2000 Received: from frankenstein.lumbercartel.com (IDENT:dcs@frankenstein.lumbercartel.com [192.168.6.2]) by heorot.lumbercartel.com (8.9.3/8.8.7) with SMTP id PAA05342 for ; Sat, 26 Aug 2000 15:22:34 -0700 From: "D. C. Sessions" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Appellate Review Standards [Was Re: TimeWarner engaging in DeCSS linking] Date: Sat, 26 Aug 2000 15:07:51 -0700 X-Mailer: KMail [version 1.0.29] Content-Type: text/plain References: <00082613251600.28089@frankenstein.lumbercartel.com> <39A83606.C89342B6@travel-net.com> In-Reply-To: <39A83606.C89342B6@travel-net.com> MIME-Version: 1.0 Message-Id: <00082615092900.01134@frankenstein.lumbercartel.com> Content-Transfer-Encoding: 8bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sat, 26 Aug 2000, Dan Steinberg wrote: > "D. C. Sessions" wrote: > > > On Sat, 26 Aug 2000, Dan Steinberg wrote: > > > > > Well since that comment came out of nowhere right in the judgement, I don't see > > > how having an expert on software development could have helped. Did anyone here > > > think that would be an appropriate question to ask a witness or expert? Its > > > great to have 20-20 hindsight but sometimes you simply get blindsided. Now that > > > we have seen Kaplan in action I'm sure we could all think of things he didnt > > > say that we might have had to defend against. > > > > Help me with this. As I remember my civics courses, the idea is that the Court > > decides based on the law but especially based on what's presented in court. > > That is, the defense is supposed to have a chance to counter the facts that > > underlie the decision, not to have them come out of the Judge's cereal box. > > > > I also thought that the Court was supposed to depend in large part on legal > > arguments presented by the two sides, for the same reason, rather than coming > > up with arguments of its own after close that neither side has a chance to > > rebut. > > Well 'tis true but..... > If you read the case carefully I think you will find that you can omit all the *new* > stuff and still find a decision supported by facts and law. we may not like the > decsion. we may disagree with the interpretation of facts/law but it is supported. > Theres a difference between saying " Joe is obviously a sleaze and there are > unimpeachable witnesses to his crime" and "Joe is a sleaze so I figger he musta done > it". It certainly helps with the judicial-bias issue, though, when the decision explicitly relies on hearsay as justification for dismissing uncontested testimony. -- | Engineers solve problems -- it's what we do. | | Do you want to be a problem? | | D. C. Sessions === dcs@lumbercartel.com | From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 26 18:32:40 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA16895 for dvd-discuss-outgoing; Sat, 26 Aug 2000 18:32:40 -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 SAA16892 for ; Sat, 26 Aug 2000 18:32:39 -0400 Received: from mit.edu (h0050da62b39d.ne.mediaone.net [24.147.217.121]) by chmls06.mediaone.net (8.8.7/8.8.7) with ESMTP id SAA03806; Sat, 26 Aug 2000 18:32:57 -0400 (EDT) Message-ID: <39A8461A.12C5DA5A@mit.edu> Date: Sat, 26 Aug 2000 18:35:06 -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] Appellate Review Standards [Was Re: TimeWarner engaging in DeCSS linking] References: <00082613251600.28089@frankenstein.lumbercartel.com> <39A83606.C89342B6@travel-net.com> <00082615092900.01134@frankenstein.lumbercartel.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 "D. C. Sessions" wrote: > It certainly helps with the judicial-bias issue, though, when the decision explicitly > relies on hearsay as justification for dismissing uncontested testimony. Does it? I was under the impression that it would be difficult (if not impossible) to use Kaplan's rulings against him on the judical-bias issue. Or is there some substantial standard of proof that Kaplan might have leapt his way over? - Ravi Nanavati From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 26 18:48:41 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA17108 for dvd-discuss-outgoing; Sat, 26 Aug 2000 18:48:41 -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 SAA17105 for ; Sat, 26 Aug 2000 18:48:30 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id SAA09227 for dvd-discuss@eon.law.harvard.edu; Sat, 26 Aug 2000 18:57:50 -0400 Date: Sat, 26 Aug 2000 18:57:45 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Freedom of the press Message-ID: <20000826185745.D6634@eldritchpress.org> References: <20000821190805.16200.qmail@web512.mail.yahoo.com> 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 Tue, Aug 22, 2000 at 03:21:25PM -0400 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, Aug 22, 2000 at 03:21:25PM -0400, Arnold G. Reinhold wrote: >... It would be very interesting to obtain the MPAA own first amendment > pleadings in cases where the censorship of motion pictures has been > proposed. Your points on freedom of the press need to be addressed in detail in the brief. If a court would not let the government have prior restraint over The Progressive magazine to publish plans for a nuclear weapon, then how is it that this judge thinks Hollywood is more important than our national security? But I'm afraid that your last point might not be very fruitful. Unfortunately, Hollywood often raises the bogeyman of government censorship in order to impose even stricter rules on its own cartel--it is not interested in freedom of press so much as in making money and killing competitors. The First Amendment is reserved for Jimmy Stewart and Ronald Reagan films as an emotional climax (that has now become meaningless). From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 26 18:55:06 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA17228 for dvd-discuss-outgoing; Sat, 26 Aug 2000 18:55:06 -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 SAA17225 for ; Sat, 26 Aug 2000 18:55:05 -0400 Received: from schoen by zork.zork.net with local (Exim 3.12 #1 (Debian)) id 13SorE-0002RS-00; Sat, 26 Aug 2000 15:55:24 -0700 Date: Sat, 26 Aug 2000 15:55:24 -0700 From: Seth David Schoen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] (fwd) ALERT: FCC considers restricting digital cable Message-ID: <20000826155524.P7898@zork.net> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <39A6DBD0.F2252460@mindspring.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0.1i In-Reply-To: <39A6DBD0.F2252460@mindspring.com>; from mickeym@mindspring.com on Fri, Aug 25, 2000 at 04:49:20PM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu mickeym writes: > What is "5C" ? DTCP. 5C stands for "5 Companies". (Toshiba and Matsushita, who created CSS, plus Hitachi, Intel, and Sony.) It's a CP spec for a digital bus, the leading proposal in the CE industry. http://www.dtcp.com/ Gotta love these little nonprofits that manage CP standards, logos, and trademarks, and sue 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 Sat Aug 26 19:00:29 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA17293 for dvd-discuss-outgoing; Sat, 26 Aug 2000 19:00:29 -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 TAA17290 for ; Sat, 26 Aug 2000 19:00:28 -0400 Message-ID: <20000826230016.11322.qmail@web515.mail.yahoo.com> Received: from [64.81.25.36] by web515.mail.yahoo.com; Sat, 26 Aug 2000 16:00:16 PDT Date: Sat, 26 Aug 2000 16:00:16 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] Appellate Review Standards [Was Re: TimeWarner engaging in DeCSS linking] To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-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: > "D. C. Sessions" wrote: > > It certainly helps with the judicial-bias issue, though, when the > > decision explicitly relies on hearsay as justification for > > dismissing uncontested testimony. > > Does it? I was under the impression that it would be difficult (if > not impossible) to use Kaplan's rulings against him on the > judical-bias issue. Or is there some substantial standard of > proof that Kaplan might have leapt his way over? Even in fact-finding, the court may not "abuse its discretion". What this means and what it takes to support it, I don't know. You can't use the way the judge ruled as evidence of bias. I would hope that you could use an abuse of discretion though. It can't be a catch-22: you must prove bias, the only thing that exists are rulings, but rulings can't prove bias. __________________________________________________ Do You Yahoo!? Yahoo! Mail - Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 26 19:14:45 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA17415 for dvd-discuss-outgoing; Sat, 26 Aug 2000 19:14:45 -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 TAA17412 for ; Sat, 26 Aug 2000 19:14:44 -0400 Received: from jy01 (user-2inihjd.dialup.mindspring.com [165.121.70.109]) by smtp10.atl.mindspring.net (8.9.3/8.8.5) with SMTP id TAA06865 for ; Sat, 26 Aug 2000 19:15:02 -0400 (EDT) Message-Id: <200008262315.TAA06865@smtp10.atl.mindspring.net> X-Sender: jya@pop.pipeline.com X-Mailer: QUALCOMM Windows Eudora Pro Version 4.0 Date: Sat, 26 Aug 2000 19:07:17 -0400 To: dvd-discuss@eon.law.harvard.edu From: John Young Subject: Re: [dvd-discuss] DVD-CCA's unclean hands In-Reply-To: <20000826225009.A4049@lemuria.org> References: <20000826124619.A1300@localhost> <20000826165619.13147.qmail@web513.mail.yahoo.com> <20000826124619.A1300@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 Here are official docs on DVD CCA provided by anonymous. ---------- Three documents attached to form of: California Secretary of State Business Programs Division Information Retrieval.Certification Unit 1500 - 11th Street Sacramento, California 95814 (916) 653-7315 Corporation Status Inquiry 07/06/00 One page attached printout summarizes documents following. ---------- Document 1, 1 p.: California Secretary of State Statement and Designation of Foreign Corporation No. 2159437 Filed April 5, 1999 DVD Copy Control Association, Inc. Incorporated under the laws of Delaware Principal executive office, and State of California principal office: DVD CCA c/o John Hoy AITC Toshiba America Electronic Components, Inc. 160 Rincon Circle San Jose, CA 95131 Service Agent of Process in California: CT Corporation System A corporation in Delaware Signature of Corporate Office: Jiro Kajino Chief Financial Officer ---------- Document 2 Attached to Document 1, 1 p.: State of Delaware Office of the Secretary of State The certificate of incorporation of "DVD Copy Control Association, Inc." was received and filed in this office the eleventh day of December, A.D. 1998. Authentication: 9594879 Date: 02024-99 ---------- Document 3, a p.: State of California Bill Jones Secretary of State Statement by Foreign Corporation No. 00-665409 Filed Sacremento, Calif Mar 6 '00 C2159437 Due Date 04-30-00 04969F DVD Copy Control Association, Inc. Karen N. Ballack 2882 Sand Hill Road, Suite 280 Menlo Park, CA 94025-7022 Address of Principal Executive Office, and Mailing Address: 225 B Cochrane Circle Morgan Hill, CA 95037 Chief Executive Officer: Jiro Kajino 2-15 Matsuba-Cho Kadoma Osaka Japan 571-8503 Secretary, and Chief Financial Officer: John Hoy 225 B Cochrane Circle Morgan Hill, CA 95037 [Stapled to document] Agent for Service of Process: C T Corporation 818 West Seventh Street Los Angeles, CA 90017 Address for Service of Process: C0168406 CA Type of Business: Non Profit Trade Association Declared as true and correct: John Hoy President 3/8/00 ---------- From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 26 19:25:08 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA17500 for dvd-discuss-outgoing; Sat, 26 Aug 2000 19:25:08 -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 TAA17497 for ; Sat, 26 Aug 2000 19:25:07 -0400 Message-ID: <20000826232456.5714.qmail@web512.mail.yahoo.com> Received: from [64.81.25.36] by web512.mail.yahoo.com; Sat, 26 Aug 2000 16:24:56 PDT Date: Sat, 26 Aug 2000 16:24:56 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] DVD-CCA's unclean hands To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-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: > Here are official docs on DVD CCA provided by anonymous. What exactly do these show that is interesting? I must be missing the point. __________________________________________________ Do You Yahoo!? Yahoo! Mail - Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 26 19:30:51 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA17584 for dvd-discuss-outgoing; Sat, 26 Aug 2000 19:30:51 -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 TAA17581 for ; Sat, 26 Aug 2000 19:30:40 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id TAA09299; Sat, 26 Aug 2000 19:39:45 -0400 Date: Sat, 26 Aug 2000 19:39:40 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Cc: junger@samsara.law.cwru.edu Subject: Re: [dvd-discuss] More on Content Neutrality Message-ID: <20000826193939.E6634@eldritchpress.org> References: <39A30ABE.88C6239F@mediaone.net> <200008230002.UAA03831@samsara.law.cwru.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <200008230002.UAA03831@samsara.law.cwru.edu>; from junger@samsara.law.cwru.edu on Tue, Aug 22, 2000 at 08:02:18PM -0400 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, Aug 22, 2000 at 08:02:18PM -0400, Peter D. Junger wrote: > Sphere writes: > > : Bryan Taylor wrote: > : > > : ... > : > > : > CLARK v. COMMUNITY FOR CREATIVE NON-VIOLENCE > : > 468 U.S. 288 (1984) > : > http://caselaw.findlaw.com/cgi-bin/getcase.pl?court=us&vol=468&invol=288 > : > > : .... > : My reading would be that Kaplan missed on > : three out of three. > : > : 1) The content is potentially a circumvention > : device. > : 2) The regulation is broad in the extreme, as > : it covers all such potential content. > : 3) Only extremely restricted alternative > : channels are left open. > > Add to this the fact that in ACLU v Reno the Court quite clearly held > that forbidding the publication of something on the Internet or the > World Wide Web is not what is meant by a ``time, place, or manner'' > regulation. There are problems involved in using O'Brien as the "bright line" (I have been meaning to throw this phrase in, as if I went to law school and was authorized to understand what it meant) instead of these later cases. O'Brien should now be seen as "overbroad" in significant ways that make it inapplicable here. > : > that they are narrowly tailored to serve a > : > significant governmental interest, The "significant governmental interest" has to be apparent from Congressional intent and history, and has to be constitutional. But in DMCA no legislative history supports the idea that Congress meant to forbid content of all software programs that decrypt unless "authorized" by DVD-CCA. Maybe "black boxes," but not software as speech. Overbroad, not tailored, no significant governmental interest. Second, the "significant governmental interest" has to be in accord with the purposes of the Copyright Clause--to "promote the progress of science and the useful arts," and of "limited times" and not perpetual, not simply a pork handout to Hollywood economic interests. The undefined link between the "authority" of the copyright holder and the "authority" granted by the DVD-CCA keys refutes any relation of this law to simply clarifying a pre-existing right under copyright. Congress cannot do the balancing, and the Court cannot either--the Constitution is plain in making the balance--woe to anyone who disrupts it! I don't know the right place to mention it, but Kaplan tries to answer the "overbroad" idea by responding that defendants could make fair use of a video by recording it on a VCR. But this implies that Macrovision is either not applied, or does not fall under the DMCA. Either he is factually wrong, or wrong in interpretation of the law (or all three). From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 26 19:43:01 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA17677 for dvd-discuss-outgoing; Sat, 26 Aug 2000 19:43:01 -0400 Received: from hotmail.com (f224.law9.hotmail.com [64.4.9.224]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id TAA17674 for ; Sat, 26 Aug 2000 19:43:00 -0400 Received: from mail pickup service by hotmail.com with Microsoft SMTPSVC; Sat, 26 Aug 2000 16:42:49 -0700 Received: from 128.244.34.133 by lw9fd.law9.hotmail.msn.com with HTTP; Sat, 26 Aug 2000 GMT X-Originating-IP: [128.244.34.133] From: "Harold Eaton" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Appellate Review Standards [Was Re: TimeWarner engaging in DeCSS linking] Date: Sat, 26 Aug 2000 19:42:48 EDT Mime-Version: 1.0 Content-Type: text/plain; format=flowed Message-ID: X-OriginalArrivalTime: 26 Aug 2000 23:42:49.0020 (UTC) FILETIME=[57A46FC0:01C00FB7] Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Dan wrote: >Well 'tis true but..... >If you read the case carefully I think you will find that you can omit all >the *new* >stuff and still find a decision supported by facts and law. we may not like >the >decsion. we may disagree with the interpretation of facts/law but it is >supported. >Theres a difference between saying " Joe is obviously a sleaze and there >are >unimpeachable witnesses to his crime" and "Joe is a sleaze so I figger he >musta done >it". A decision "supported by facts and law" eh? As long as the "facts" are allowed to be false, and the law allowed to be carefully excerpted, that's true. ________________________________________________________________________ Get Your Private, Free E-mail from MSN Hotmail at http://www.hotmail.com From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 26 19:45:13 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA17792 for dvd-discuss-outgoing; Sat, 26 Aug 2000 19:45:13 -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 TAA17789 for ; Sat, 26 Aug 2000 19:45:02 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id TAA09342 for dvd-discuss@eon.law.harvard.edu; Sat, 26 Aug 2000 19:54:22 -0400 Date: Sat, 26 Aug 2000 19:54:17 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] more errors in Kaplan's Message-ID: <20000826195417.F6634@eldritchpress.org> References: <20000822193556.24514.qmail@web515.mail.yahoo.com> <200008222259.SAA16651@soggy-fibers.ai.mit.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <200008222259.SAA16651@soggy-fibers.ai.mit.edu>; from rst@ai.mit.edu on Tue, Aug 22, 2000 at 06:59:34PM -0400 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, Aug 22, 2000 at 06:59:34PM -0400, Robert S. Thau wrote: > Bryan Taylor writes: >... > > Clickwrap agreements purport to be contracts, not access controls. God > > help us otherwise. > > with which I have no argument. I believe Microsoft in writing Slashdot did claim that their EULA on a web page was covered by DMCA, as they used DMCA to try to get /. to remove links to the Kerberos page they "published" themselves. However, they gave this up rather soon and no growls from their corner have been heard since--nothing in the way of precedent can be assumed. > That said, I think that some forms of password protection systems > would qualify; see the MIT-student records system cited as an example > in the authority paper. Yes, but I think you point out that there has be some way that "authority" is granted to the user. Simply forbidding access without being clear of the authority model will not do. Maybe this is an example: Minix (predecessor of Linux) was copyrighted and sold by Prentice Hall. For years, the most frequent question in the FAQ was, "what is the root password," and the answer was, "buy the disks (and book) and find out." However, Minix is now released under a sort of BSD license. Yet the situation is quite the same, Prentice Hall and Andy Tanenbaum have never specifically authorized the release of the root password. Presumably it is a violation of the DMCA for me to tell you it is "Geheim"? If so, the DMCA makes a travesty of free software. From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 26 19:48:54 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA17835 for dvd-discuss-outgoing; Sat, 26 Aug 2000 19:48:54 -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 TAA17832 for ; Sat, 26 Aug 2000 19:48:53 -0400 Message-ID: <20000826234842.1384.qmail@web510.mail.yahoo.com> Received: from [64.81.25.36] by web510.mail.yahoo.com; Sat, 26 Aug 2000 16:48:42 PDT Date: Sat, 26 Aug 2000 16:48:42 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] More on Content Neutrality To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-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: > I don't know the right place to mention it, but Kaplan tries > to answer the "overbroad" idea by responding that defendants > could make fair use of a video by recording it on a VCR. Isn't this tantamount to Kaplan saying that there is no fair use of a DVD? You bought it, you own it, the copyright owner got his reward, but if you want use it, well too bad, why don't you make another purchase. Fair use applies to any copy, not "fair use approved" ones. Has anybody read Nimmers 'A Riff on Fair Use' article? __________________________________________________ Do You Yahoo!? Yahoo! Mail - Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 26 19:51:26 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA17878 for dvd-discuss-outgoing; Sat, 26 Aug 2000 19:51:26 -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 TAA17875 for ; Sat, 26 Aug 2000 19:51:25 -0400 Received: from jy01 (user-2inihjd.dialup.mindspring.com [165.121.70.109]) by smtp10.atl.mindspring.net (8.9.3/8.8.5) with SMTP id TAA18575 for ; Sat, 26 Aug 2000 19:51:43 -0400 (EDT) Message-Id: <200008262351.TAA18575@smtp10.atl.mindspring.net> X-Sender: jya@pop.pipeline.com X-Mailer: QUALCOMM Windows Eudora Pro Version 4.0 Date: Sat, 26 Aug 2000 19:43:59 -0400 To: dvd-discuss@eon.law.harvard.edu From: John Young Subject: Re: [dvd-discuss] DVD-CCA's unclean hands In-Reply-To: <20000826232456.5714.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 They show only that DVD CCA is barely existent, a corporate fiction, one of thousands born for quicksilver fleece. And that if an agrieved defendant wanted to countersue the plaintiff s/he would have to sue a foreign corporation registered to do funny business in California, which was incorporated in flim-flam Delaware, and homeboyed in Japan. And that this legacy string of corporeal insubstantiality is the refuge of scoundrels seeking to avoid personal liability for causing harm to persons. And that the State of California as with most states proffers this wispy thread of legitimacy to defuse the angry crowd's rage at governmental protection of slippery corporations. Mr. Japan meet Madame Delaware, who will arc the US to introduce you to Ms. California who will certify an unclean CEO as a really pure person, a bit hard to serve a process to, you know. From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 26 20:38:26 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA18049 for dvd-discuss-outgoing; Sat, 26 Aug 2000 20:38:26 -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 UAA18046 for ; Sat, 26 Aug 2000 20:38:25 -0400 Received: from Jana-Server (user-38lcjml.dialup.mindspring.com [209.86.78.213]) by blount.mail.mindspring.net (8.9.3/8.8.5) with SMTP id UAA30818 for ; Sat, 26 Aug 2000 20:38:42 -0400 (EDT) Message-ID: <39A8635C.18305C68@mindspring.com> Date: Sat, 26 Aug 2000 20:39:57 -0400 From: mickeym X-Mailer: Mozilla 4.7 [en] (Win95; I) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Proof of Purchase Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > | DVD discs are instruments of the motion picture industry in that their > | purpose is to deliver motion picture content to their purchasers 14 > | Pavlovich Aug. Depo., pp. 28); > > We don't know what their purpose is. But they are published products. > Even if it is filled with mean spirited characterizations of free thinking people, at least now it is on the record that a DVD is PURCHASED. And, as if open source was so evil: www.dvdcca.org is running Apache/1.3.3 (Unix) PHP/3.0.5 on BSD/OS www.mca.com is running Apache/1.3.6 (Unix) PHP/4.0.1pl2 on Solaris The courthouse doesn't: CLARAWEB.CO.Santa-Clara.CA.US is running Netscape-Enterprise/4.1 on Solaris But looka here: www.loc.gov is running Apache/1.3.9 (Unix) ApacheJServ/1.1 on AIX friends in high places? From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 26 21:41:40 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA18288 for dvd-discuss-outgoing; Sat, 26 Aug 2000 21:41:40 -0400 Received: from eldritchpress.org ([24.128.241.25]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id VAA18285 for ; Sat, 26 Aug 2000 21:41:25 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id VAA09533 for dvd-discuss@eon.law.harvard.edu; Sat, 26 Aug 2000 21:49:13 -0400 Date: Sat, 26 Aug 2000 21:49:08 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Reason will win out in the end? Message-ID: <20000826214908.K6634@eldritchpress.org> References: <39A3FE50.EFBB29CB@uic.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <39A3FE50.EFBB29CB@uic.edu>; from jms@uic.edu on Wed, Aug 23, 2000 at 11:39:44AM -0500 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Wed, Aug 23, 2000 at 11:39:44AM -0500, John Schulien wrote: >... > The software industry went through the copy > protection chimera back in the 1980s, with the > Apple II. Eventually, the industry came to the > realization that all copy protection does is drive > people away from store-purchased software, which > can't be backed up, and towards "hacked" > software, that does what the software is supposed > to do in the most efficient and end-user friendly > fashion possible. Exactly. I went through this whole history and I confirm it. I was president of an Apple ][ user group and we were basically driven under by the computer stores and the Steve-Jobs-wing of Apple discrediting us as "pirates" because we wanted to control the software we bought. Ironically, we spent lots more money on software than anybody else--if we had not, hardly any software would have been sold. I have a huge room full of the stuff. What I find most interesting is that there may be some secret collusion between the monopolies and the pirates. In China, for example, Red Flag Linux, as I understand it, is having a hard time even though it enjoys government support. It appears that the real pirates make more money by selling very cheap versions of pirated Microsoft products and the "network effect" is causing the market to go to Microsoft rather than Linux--even though Linux is more powerful and cheaper in the long run. So it appears that Microsoft has an interest in helping a certain amount of pirating in China--that only increases their market dominance--while vigorously suppressing piracy there would only drive users to Linux instead. Another trick Microsoft has used is to take advantage of the BSA or whatever the software industry alliance is called now to stop piracy--they will find somebody using Novell software illegally and then tell them they will be off the hook if they just buy Microsoft. And of course we all know what happened to the movie industry when it was defeated by the VCR and went out of business. Too bad, no? From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 26 21:58:59 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA18699 for dvd-discuss-outgoing; Sat, 26 Aug 2000 21:58:59 -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 VAA18696 for ; Sat, 26 Aug 2000 21:58:47 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id WAA09571 for dvd-discuss@eon.law.harvard.edu; Sat, 26 Aug 2000 22:07:48 -0400 Date: Sat, 26 Aug 2000 22:07:43 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Content Neutral: Bery v. New York City (!!) Message-ID: <20000826220743.L6634@eldritchpress.org> References: <20000823175638.6363.qmail@web511.mail.yahoo.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <20000823175638.6363.qmail@web511.mail.yahoo.com>; from bryan_w_taylor@yahoo.com on Wed, Aug 23, 2000 at 10:56:38AM -0700 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Wed, Aug 23, 2000 at 10:56:38AM -0700, Bryan Taylor wrote: >... > > Bery v. City of New York > 95-9089 (2nd Cir. 1996) > http://caselaw.findlaw.com/scripts/getcase.pl?court=2nd&navby=case&no=959089&exact=1 > > A content-neutral regulation may restrict the time, place, and manner > of protected speech, provided it is "narrowly tailored to serve a > significant governmental interest" and "leave[s] open ample alternative > channels for communication." Ward , 491 U.S. at 791 , quoting Clark v. > Community for Creative Non-Violence , 468 U.S. 288, 293 (1984). The > City certainly has a significant interest in keeping its public spaces > safe and free of congestion. The license requirement as it relates to > appellants, however, which effectively bars them from displaying or ^^^^^^^^^^^ > selling their art on the streets, is too sweeping to pass > constitutional muster. See, e.g. , Cincinnati v. Discovery Network, > Inc. , 507 U.S. 410, 429-30 (1993). The district court's failure to > properly analyze the questions of narrow tailoring and alternative > channels was an abuse of discretion that led to an incorrect result. >... > These arguments must fail. The sale of protected materials is also > protected. See Lakewood v. Plain Dealer Pub. Co. , 486 U.S. 750, 756 > n.5 & 768 (1988). Kaplan tries to say that he, Congress, and the DMCA do not bar fair use, because one can always do that on one's own (without "trafficking" in it). However, the language here seems to indicate that this would "effectively" bar fair use, and thus be unconstitutional. It is just as necessary to be able to buy the decryption technology as it is to use it, just as it is an integral part of the process of art that it be bought and sold--"the sale of protected materials is also protected." Sorry if this seems late--I am valiantly trying to make up for my poor attendance on this forum! From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 26 22:06:47 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA18802 for dvd-discuss-outgoing; Sat, 26 Aug 2000 22:06:47 -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 WAA18794 for ; Sat, 26 Aug 2000 22:06:46 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id VAA09502 for dvd-discuss@eon.law.harvard.edu; Sat, 26 Aug 2000 21:18:39 -0400 Date: Sat, 26 Aug 2000 21:18:29 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Paladin Press (was Re: [dvd-discuss] 2600 web site Message-ID: <20000826211829.H6634@eldritchpress.org> References: Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: ; from crazed376@hotmail.com on Wed, Aug 23, 2000 at 04:26:51PM +0000 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Wed, Aug 23, 2000 at 04:26:51PM +0000, Richard Ramos wrote: > Maybe someone should remind Disney that they fought, through ABC, to keep > the book, "How to be a Hit Man" from being taken off shelves because of the > First Amendment. The source code to DeCSS contains step by step > instructions just as the book does. Maybe someone should remind them about > this. > > Richard Ramos > > ps - I may not have the correct title of the book. I got this info from a > show that aired on ABC titled, "You Can't Say That? What's Happening to > Free Speech in America" http://www.paladin-press.com/ PALADIN PRESS Legal Statement WARNING: Paladin does not intend for any of the information contained in its books or videos to be used for criminal purposes. In specific cases involving such misuse, Paladin will cooperate with law enforcement investigations. You undoubtedly noticed the prominent warning on our home page, and you have also seen it displayed on the cover of Paladin's catalogs beginning with the July 1999 issue. This has always been Paladin's policy, as has been made clear previously on the "Frequently Asked Questions" page of our Web site. In light of the Senate's recent passing of the federal Juvenile Crime Act regarding a publisher's "intent" when distributing information on explosives in particular, we feel it is necessary to reiterate this policy and display it prominently. This does not mean that law enforcement agencies will have access to our mailing list. Paladin has never, and will never, hand over its mailing list to any law enforcement agency. What it does mean is if presented with a formal request regarding an official criminal investigation, Paladin staff will search our files to confirm whether the specific individual named in the request has purchased products from Paladin Press. What law-abiding citizens choose to read in the privacy of their own homes is not the business of any government bureau, police department, or media organization, and Paladin will always protect the privacy of its customers in this vital area. As a free American citizen, you still have the right to read and watch anything you want, including any of the books and videos in the Paladin catalog. And that has been the cornerstone of our publishing philosophy since its inception in 1970. But the law is clear: there is an important distinction between personal or professional academic interest and criminal intent when one collects information concerning the manufacture of explosives, the construction of firearms and firearm silencers, the creation of a new identity, and other topics covered in the Paladin catalog. To put it bluntly: under current U.S. law you still have the right to read about these topics; you do not have the right to use what you've learned to commit a crime. Why did Paladin Press drop its explosives titles? Click here to find out. EXPLOSIVES TITLES NO LONGER AVAILABLE For various reasons -- including 1) the recent settlement of the Hit Man lawsuit against Paladin and the legal precedent it has set, and 2) the passing of Senate Bill S606 that criminalizes the distribution of information on explosives under certain circumstances -- Paladin has been forced to carefully evaluate some of the books and videos we sell. In light of the current political and legal climate in this country, we have concluded that it is no longer feasible to publish or sell certain titles on explosives, demolitions, improvised weaponry, and self-defense. This has been a difficult decision to make, but we appreciate your understanding and continued support. Anybody know that happened in "the recent settlement of the Hit Man lawsuit"? If I recall correctly, it had to do with a book that was purchased by a person who then killed another person, and the publisher was charged with being an accessory because the information in the book was supposedly used to commit the crime. ... To put it bluntly: under current U.S. law you still have the right to read about these topics; you do not have the right to use what you've learned to commit a crime. (And Paladin Press doesn't have the right to publish about these topics either, no matter what the mouse says.) From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 26 22:06:47 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA18806 for dvd-discuss-outgoing; Sat, 26 Aug 2000 22:06:47 -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 WAA18797 for ; Sat, 26 Aug 2000 22:06:46 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id VAA09486 for dvd-discuss@eon.law.harvard.edu; Sat, 26 Aug 2000 21:05:53 -0400 Date: Sat, 26 Aug 2000 21:05:48 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] 40-bit encryption (Was Re: code as speech) Message-ID: <20000826210548.G6634@eldritchpress.org> References: <8nui25$m7u$1@blowfish.isaac.cs.berkeley.edu> <8nvr2p$o5p$1@blowfish.isaac.cs.berkeley.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=iso-8859-1 Content-Transfer-Encoding: 8bit X-Mailer: Mutt 1.0i In-Reply-To: ; from reinhold@world.std.com on Wed, Aug 23, 2000 at 12:16:50PM -0400 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Wed, Aug 23, 2000 at 12:16:50PM -0400, Arnold G. Reinhold wrote: >... > .... There is a long history, as you in > particular know, of bad crypto that only gets fixed when a breach is > publicly demonstrated. I would argue that 2600.com and its ilk > perform an extremely valuable public service in exposing bad security > designs. Bruce Schneier gave a talk at DCSB a couple of weeks ago > where he said that you cannot beta test security. That's not quite > right. The hacker community are the beta testers. If they were > successfully suppressed, should put the MPAAs claim of damage from in > proper perspective it would cost billions to develop a testing > infrastructure to replace them. (q.v. NSA's budget.) >... > .... Far from causing damage to copyright owners, defendants did > them a great service by demonstrating just how bad CSS is. > Experience shows that senior managers do not change their behavior > with regard to weak security based on learned papers; they only do so > after demonstrated breaks. Copyright owners who have not yet released > on DVD can now make decisions based on reality. Stockholders can now > more realistically evaluate the worth of copyright assets. Judge > Kaplan would suppress this truth. Back to analyzing the opinion for appeal. On page 38-40 (PDF 42ff), Kaplan discusses the argument that DeCSS was released as reverse engineering as part of a security analysis. He says this: 39 Paragraph (2) in relevant part permits circumvention of technological measures in the course of good faith encryption research if: "(A) the person lawfully obtained the encrypted copy, phonorecord, performance, or display of the published work; "(B) such act is necessary to conduct such encryption research; "(C) the person made a good faith effort to obtain authorization before the circumvention; and "(D) such act does not constitute infringement under this title . . . ."151 In determining whether one is engaged in good faith encryption research, the Court is instructed to consider factors including whether the results of the putative encryption research are disseminated in a manner designed to advance the state of knowledge of encryption technology versus facilitation of copyright infringement, whether the person in question is engaged in legitimate study of or work in encryption, and whether the results of the research are communicated in a timely fashion to the copyright owner.152 Neither of the defendants remaining in this case was or is involved in good faith encryption research.153 They posted DeCSS for all the world to see. There is no evidence that they made any effort to provide the results of the DeCSS effort to the copyright owners. Surely there is 40 no suggestion that either of them made a good faith effort to obtain authorization from the copyright owners. Accordingly, defendants are not protected by Section 1201(g).154 151 Id. § 1201(g)(2). 152 Id. § 1201(g)(3). 153 Ex. 96 (Corley Dep.) at 33. 154 In any case, Section 1201(g), where its requirements are met, is a defense only to claims under Section 1201(a)(2), not those under Section 1201(b). So this needs to be addressed in the appeal. How would you suggest that the Circuit Court be enlightened as to how to perform encryption research? Taking a stab at this, I would have to say that (C) is the critical point, "the person made a good faith effort to obtain authorization before the circumvention". A possible response is that MoRE did not need any authorization other than purchasing the disc, player, and drive, nor is it still clear how one can get such authorization from the copyright holder except thereby. (D) is moot, and (A) and (B) are not sufficient, since MPAA would stipulate those. As far as the requirement that the results of the attack on the encryption be made secret or public, I don't see any requirement in the law that they remain secret. For if they were, then it is less likely that DVD-CCA would fix the problem--already they have testified it will cost a lot of money to do so, so it would be easier for them to shoot the messenger. In past attacks on Microsoft security, for example, it has been customary to release the results of the attack, together with the code, if Microsoft does not fix the problem quickly. Anyway, we are dealing not with MoRE, but with 2600, a magazine whose job it is to print news. Part of the news that 2600 subscribers buy is the results of attacks on security. By the time 2600 picked it up it was already available by others to DVD-CCA to fix or to suggest that authorization be required in a certain way for such research. Furthermore, the news had already progressed beyond DeCSS to Stevenson's analysis, hadn't it? So I would have to go with the discussion by acknowledged security experts that Judge Kaplan does not know what he is talking about here. Congress held off on enforcing the reverse engineering clause, I submit, for this very reason-- the ACM and other professionals said that they need a period of time to make a case for practice--this time has not yet expired--Kaplan is prejudging the case. "Neither of the defendants remaining in this case was or is involved in good faith encryption research.153" What difference does this make? This is like arguing that The New York Times cannot report on a huge security lapse at a national security lab, because it is not "engaged in good faith encryption research." The research was performed by others--so what, 2600 is a news organization just like the Times. From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 26 22:06:46 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA18800 for dvd-discuss-outgoing; Sat, 26 Aug 2000 22:06:46 -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 WAA18791 for ; Sat, 26 Aug 2000 22:06:32 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id VAA09517 for dvd-discuss@eon.law.harvard.edu; Sat, 26 Aug 2000 21:33:29 -0400 Date: Sat, 26 Aug 2000 21:33:24 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] 2600 web site Message-ID: <20000826213324.I6634@eldritchpress.org> References: <20000823183454.15205.qmail@web511.mail.yahoo.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <20000823183454.15205.qmail@web511.mail.yahoo.com>; from bryan_w_taylor@yahoo.com on Wed, Aug 23, 2000 at 11:34:54AM -0700 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Wed, Aug 23, 2000 at 11:34:54AM -0700, Bryan Taylor wrote: > > --- Eric Seppanen wrote: > > On Wed, Aug 23, 2000 at 04:26:51PM +0000, Richard Ramos wrote: > > > Maybe someone should remind Disney that they fought, through ABC, > > > to keep the book, "How to be a Hit Man" from being taken off > shelves > > > because of the First Amendment. The source code to DeCSS > > > contains step by step instructions just as the book does. Maybe > > > someone should remind them about this. > > Actually, I'm surprised they didn't use the precedent, since they in > the Circuit Court, after winning summary judgement below. The Supreme > Court passed on the appeal, and the defendents settled and paid, rather > than go to trial. > > > The title is "Hit Man : A Technical Manual for Independent > > Contractors", and the author is "Rex Feral". The case is Rice v. > > Paladin. > > > > Links: > > http://www.reason.com/sullum/052798.html > > http://caselaw.findlaw.com/data2/circs/4th/962412p.html > > http://www.lawnewsnetwork.com/stories/A15150-2000Feb3.html > > You left one out: > http://www.overthrow.com/hitmanonline.html Protected by the DMCA because the background color on the web page is dark reddish-brown and the text is otherwise illegible if one does not "circumvent" the controls? I like Mike Godwin's and Floyd Abrams's argument that web publishing ought to make prior restraint go away. From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 26 22:14:17 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA18923 for dvd-discuss-outgoing; Sat, 26 Aug 2000 22:14:17 -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 WAA18920 for ; Sat, 26 Aug 2000 22:14:16 -0400 Received: from mediaone.net (h0060b03c5b8b.ne.mediaone.net [24.128.18.77]) by chmls05.mediaone.net (8.8.7/8.8.7) with ESMTP id VAA17787 for ; Sat, 26 Aug 2000 21:30:11 -0400 (EDT) Message-ID: <39A86F22.33BF6009@mediaone.net> Date: Sat, 26 Aug 2000 21:30:10 -0400 From: Sphere X-Mailer: Mozilla 4.73 [en] (WinNT; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Proof of Purchase References: <39A8635C.18305C68@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 mickeym wrote: > > > | DVD discs are instruments of the motion picture industry in that their > > | purpose is to deliver motion picture content to their purchasers 14 > > | Pavlovich Aug. Depo., pp. 28); > > > > We don't know what their purpose is. But they are published products. > > > > Even if it is filled with mean spirited characterizations of free > thinking people, at least now it is > on the record that a DVD is PURCHASED. > > And, as if open source was so evil: > > www.dvdcca.org is running Apache/1.3.3 (Unix) PHP/3.0.5 on BSD/OS > www.mca.com is running Apache/1.3.6 (Unix) PHP/4.0.1pl2 on Solaris Moles will be easy to come by. Moles in the Open Source camp is an oxymoron. > The courthouse doesn't: > > CLARAWEB.CO.Santa-Clara.CA.US is running Netscape-Enterprise/4.1 on > Solaris Not exactly enemy territory... > But looka here: > > www.loc.gov is running Apache/1.3.9 (Unix) ApacheJServ/1.1 on AIX > > friends in high places? You know how it is with civil war. Brother against brother. -- Sphere. Is DeCSS.c obscene? Why can't I read it? Can knowledge be forbidden? From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 26 22:51:48 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA19113 for dvd-discuss-outgoing; Sat, 26 Aug 2000 22:51:48 -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 WAA19110 for ; Sat, 26 Aug 2000 22:51:37 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id XAA09645 for dvd-discuss@eon.law.harvard.edu; Sat, 26 Aug 2000 23:00:58 -0400 Date: Sat, 26 Aug 2000 23:00:53 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Erie v. Pap's Message-ID: <20000826230053.M6634@eldritchpress.org> References: <20000823222831.16668.qmail@web511.mail.yahoo.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <20000823222831.16668.qmail@web511.mail.yahoo.com>; from bryan_w_taylor@yahoo.com on Wed, Aug 23, 2000 at 03:28:31PM -0700 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Wed, Aug 23, 2000 at 03:28:31PM -0700, Bryan Taylor wrote: > I just read the very recent case that deals with content-neutral laws. > I'm not happy about the result. > > ERIE v. PAP'S A. M. > U.S. 98-1161 (2000) > http://caselaw.findlaw.com/scripts/getcase.pl?court=us&vol=000&invol=98-1161 > > Here the court in a fractured plurality opinion, over strident dissent > from Stevens & Ginsberg, held that a city's ban on public nudity was a > content-neutral standard as applied to Kandyland, an all nude dance > club. In doing so, the reversed the Pennsylvania Supreme Court. > > I actually found Steven's dissent pretty persuasive. Anyway, the > opinion of the court by O'Connor shows how the Court tries to apply > analysis under the O'Brien test. Yeah, I worry about O'Connor most of all. But don't despair (just yet). There are some ways to counterattack. Scalia's (and Thomas's) concurring decision notes that a production of Equus involving nudity would not make the ordinance discriminatory: "The assertion of the city's counsel in the trial court that the ordinance would not cover theatrical productions to the extent their expressive activity rose to a higher level of protected expression simply meant that the ordinance would not be enforceable against such productions if the Constitution forbade it." So if 2600 enjoys First Amendment protection as a publisher then they should enjoy similar "higher level" of protection than the ordinary "trafficker" in technology. The Constitution does forbid the sort of transfer of monopoly that Kaplan tries to justify, and use to grant prior restraint against a publisher. Furthermore, there is a repetition of points from O'Brien that the government regulation must be well-justified. O'Conner notes that the city issued a preamble to the regulation that pointed to the negative secondary effects of nude dancing entertainment in a community, thus justifying the regulation. Several studies were made and cited to prove these points (I suppose eminent jurists had to witness the nude dancing themselves to decide the import of such studies.) But for Congress to pass an amendment to the copyright law requires them to consult the Constitution to justify the regulation. Congress has no power under the Constitution to hand over a monopoly on DVD players to the DVD-CCA, and enforce this through a criminal copyright law. Despite this, the Congress did not even assemble the facts to bolster the regulation, but left it to the Librarian of Congress to handle testimony in coming years. There is no attempt to justify the statute by stating any study has shown that the "progress of science and the useful arts" in this country depends on Hollywood owning such a perpetual monopoly. In fact, the legislative history is to the contrary, full of arguments why the statute should not restrict new technology. Again, we see from O'Connor and the majority: Pap's argument that the ordinance is "aimed" at suppressing expression through a ban on nude dancing is really an argument that Erie also had an illicit motive in enacting the ordinance. However, this Court will not strike down an otherwise constitutional statute on the basis of an alleged illicit motive But this is the heart of the argument: the DMCA statute is not "otherwise constitutional"--it is unconstitutional just because it is based on an illicit motive--to establish a perpetual patent or copyright on technology that is separate from the copyrighted content. Bryan, I think you were right before that Corley meets the four prongs of O'Brien's test--but even if not, it is a better case than any of these, and should prevail if the justices have any common sense left. From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 26 23:00:24 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA19208 for dvd-discuss-outgoing; Sat, 26 Aug 2000 23:00:24 -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 XAA19205 for ; Sat, 26 Aug 2000 23:00:13 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id XAA09676 for dvd-discuss@eon.law.harvard.edu; Sat, 26 Aug 2000 23:09:35 -0400 Date: Sat, 26 Aug 2000 23:09:30 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] NYTimes article on DeCSS Message-ID: <20000826230930.N6634@eldritchpress.org> References: <20000824045616.2363.qmail@web512.mail.yahoo.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <20000824045616.2363.qmail@web512.mail.yahoo.com>; from bryan_w_taylor@yahoo.com on Wed, Aug 23, 2000 at 09:56:16PM -0700 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Wed, Aug 23, 2000 at 09:56:16PM -0700, Bryan Taylor wrote: > > --- "David A. Wagner" wrote: > > The following opinion article may be of interest to this mailing > > list. > > > > > http://www.nytimes.com/library/tech/00/08/circuits/articles/24pete.html > > > > Choice quote from article: > > > "This is the court's decision after trial, and the decision may be > summarized in a nutshell," District Judge Lewis A. Kaplan wrote in his > decision. With all due respect to Judge Kaplan, he chose a highly > appropriate container. > > > This is the New York Times taking a jab, not some crackpot (like me) on > slashdot. Unfortunately, it's Peter Lewis who is taking the jab, as he leaves The New York Times to go to Fortune magazine. But it was a pretty good jab--I too experienced the locker situation but am not bright enough to write about it. From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 26 23:22:27 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA19305 for dvd-discuss-outgoing; Sat, 26 Aug 2000 23:22:27 -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 XAA19302 for ; Sat, 26 Aug 2000 23:22:26 -0400 Message-ID: <20000827032215.22979.qmail@web512.mail.yahoo.com> Received: from [64.81.25.36] by web512.mail.yahoo.com; Sat, 26 Aug 2000 20:22:15 PDT Date: Sat, 26 Aug 2000 20:22:15 -0700 (PDT) From: Bryan Taylor Subject: [dvd-discuss] Content Based 1201(g) exception (Was: 40-bit encryption) To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --- Eric Eldred wrote Excuse me while I go off on Kaplan. His 1201(g) analysis under the context of the O'Brien standard is just utterly weak. Let's look at what he says from the point of view of a content-neutral restriction on conduct with incidental restrictions on speech. Quoting Kaplan: > encryption research, the Court is instructed to consider > factors including whether the results of the putative > encryption research are disseminated in a manner designed to > advance the state of knowledge of encryption technology > versus facilitation of copyright infringement, whether the > person in question is engaged in legitimate study of or work > in encryption, and whether the results of the research are > communicated in a timely fashion to the copyright owner.152 These are content based tests since one must look at the content of the communications themselves to assess "the manner of dissemination". For example, Kaplan clearly weighed the words used by 2600 in his analysis of this. Time, place, manner distinctions must be content-neutral under an intermediate scrutiny. Also "advance the state of knowledge" is vague, as is the "legitimate study" requirement. Clearly 2600's "access to information" motivation as journalists in the field of security (!) is an concerted attempt to do exactly this. Moreover, the common policy of "full disclosure" of security weaknesses is clearly the strongest attempt one can make in this regard. The array of leading computer security researchers that testified to DeCSS advancing the state of knowledge in the field of computer security clearly also believed this was the case. Kaplan abused his discretion by ignoring their undisputed testimony. Also, by refusing to hear the case for fair use under a Betamax standard, Kaplan fails his duty to properly weigh the copyright infringement aspects of DeCSS, affording them excessive weight. In fact, Kaplan misreads both exceptions totally, because he fails to give any argument for 2600 contributing to copyright infringement. > Neither of the defendants remaining in this case was or is > involved in good faith encryption research.153 They posted > DeCSS for all the world to see. There is no evidence that > they made any effort to provide the results of the DeCSS > effort to the copyright owners. Wouldn't posting DeCSS for all the world to see constitue "an effort to provide the results of the DeCSS effort to the copyright owners"? Or are they copyright owners on a different planet? 2600 is a security journal who published a story. If Kaplan reads the statue to require 2600 to send the MPAA their own personal hard copy in stead of providing them with web access, then the statue requires specific acts of speech and is again content-based. In fact, it's content based merely by requiring publication. Moreover, since there are many copyright owners sharing the CSS system, it is an unduly burdensome restriction to require personal communication to each of them. > Surely there is no suggestion that either of them made a good > faith effort to obtain authorization from the copyright owners. > Accordingly, defendants are not protected by Section > 1201(g).154 Since this makes the ultimate speech act contingent on prior specific content of communication, this makes the 1201(g) exception content based. "You may say A if you say B" is a content based restriction. Moreover, this requirement is itself a prior restraint which will chill research, since one can expect companies, who do not ultimately answer to the people, to do nothing other than rattle their sabres if they get the news. > "Neither of the defendants remaining in this case was or is > involved in good faith encryption research.153" ... and the CS departments at CMU and Princeton's opinions to the contrary, be damned!? > What difference does this make? This is like arguing that > The New York Times cannot report on a huge security lapse > at a national security lab, because it is not "engaged in > good faith encryption research." The research was performed > by others--so what, 2600 is a news organization just like > the Times. In fact, doesn't a journalist engage in "research" when they cover stories in their field of expertise? It doesn't say "original" research. If you do nothing other than say "Mr X did Y using method Z" is that not encryption research? __________________________________________________ Do You Yahoo!? Yahoo! Mail - Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 26 23:22:12 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA19297 for dvd-discuss-outgoing; Sat, 26 Aug 2000 23:22:12 -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 XAA19294 for ; Sat, 26 Aug 2000 23:22:01 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id XAA09751 for dvd-discuss@eon.law.harvard.edu; Sat, 26 Aug 2000 23:31:23 -0400 Date: Sat, 26 Aug 2000 23:31:18 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Defense outline? Message-ID: <20000826233118.O6634@eldritchpress.org> References: <20000824161240.3127.qmail@web509.mail.yahoo.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: ; from sterno@bigbrother.net on Thu, Aug 24, 2000 at 11:20:42AM -0500 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, Aug 24, 2000 at 11:20:42AM -0500, Steve Stearns wrote: > On Thu, 24 Aug 2000, Bryan Taylor wrote: > > > Actually, I'm kind on in the mood to write/petition to Congress. > > Anybody up for a letter-writing campaign? > > Sounds good to me. One point that became very clear in this whole debacle > is that we can save ourselves a whole lot of trouble if we can keep bad > laws like the DMCA out of the books in the first place. Of course a lot > of this comes down to who has the deeper pockets, but at least writing a > letter is a good start. A few of us tried to drum up interest when Congress was considering and then passed the DMCA and Bono Act. I couldn't get any support then. The famous newspapers such as The Boston Globe and The New York Times and Washington Post refused to run stories even reporting that the bills had been passed--all they could do at that time was wring their hands at how the "Lewinsky crisis" was diverting attention from "important national interests." Oh, the Post did run a gossip column piece about how Eisner bribed Congressmen. The ACM was only interested in getting protection for some possible reverse engineering. The librarians could care less-- a few crumbs were tossed them, but they were meaningless. I have no faith in letter writing to Congress or the Administration. If the Supreme Court affirms Kaplan and Bono then it's Freenet or bust. I went through this before during the time of O'Brien--I was willing to go to jail to prove my principles, but in fact going to jail never proved anything, even for Thoreau. So I will devote some energy to this appeal, and the appeal of my own case, but I spend the majority of my time "circumventing" Microsoft Reader's encryption of some books I want to post for free on the web. From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 26 23:38:19 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA20190 for dvd-discuss-outgoing; Sat, 26 Aug 2000 23:38:19 -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 XAA20187 for ; Sat, 26 Aug 2000 23:38:18 -0400 Message-ID: <20000827033807.6021.qmail@web509.mail.yahoo.com> Received: from [64.81.25.36] by web509.mail.yahoo.com; Sat, 26 Aug 2000 20:38:07 PDT Date: Sat, 26 Aug 2000 20:38:07 -0700 (PDT) From: Bryan Taylor Subject: Re: Paladin Press (was Re: [dvd-discuss] 2600 web site To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-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: > Anybody know that happened in "the recent settlement of the Hit Man > lawsuit"? If I recall correctly, it had to do with a book that > was purchased by a person who then killed another person, and the > publisher was charged with being an accessory because the information > in the book was supposedly used to commit the crime. After the Circuit Court overturned their summary judgement, the Supreme Court denied certiori and they settled. They agreed to stop publishing the book, which is available on the internet here: http://www.overthrow.com/hitmanonline.html The legal precedent analysed the "aiding and abetting" lawsuit under the advocacy of illegal acts "incitement to immenent lawless action" standard (the site above has a little info about it). There was a post in the last few days with a link to the opinion and two articles about the story. __________________________________________________ Do You Yahoo!? Yahoo! Mail - Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 26 23:41:22 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA20272 for dvd-discuss-outgoing; Sat, 26 Aug 2000 23:41:22 -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 XAA20269 for ; Sat, 26 Aug 2000 23:41:21 -0400 Received: from mit.edu (h0050da62b39d.ne.mediaone.net [24.147.217.121]) by chmls05.mediaone.net (8.8.7/8.8.7) with ESMTP id XAA22228; Sat, 26 Aug 2000 23:41:41 -0400 (EDT) Message-ID: <39A88E74.D3CDF922@mit.edu> Date: Sat, 26 Aug 2000 23:43:48 -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] 40-bit encryption (Was Re: code as speech) References: <8nui25$m7u$1@blowfish.isaac.cs.berkeley.edu> <8nvr2p$o5p$1@blowfish.isaac.cs.berkeley.edu> <20000826210548.G6634@eldritchpress.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 Eric Eldred wrote: > Back to analyzing the opinion for appeal. > > On page 38-40 (PDF 42ff), Kaplan discusses the argument that DeCSS was > released as reverse engineering as part of a security analysis. > He says this: > > 39 > > Paragraph (2) in relevant part permits circumvention of > technological measures in the course of good > faith encryption research if: > "(A) the person lawfully obtained the encrypted copy, > phonorecord, performance, > or display of the published work; > "(B) such act is necessary to conduct such encryption > research; > "(C) the person made a good faith effort to obtain > authorization before the > circumvention; and > "(D) such act does not constitute infringement under this > title . . . ."151 > > In determining whether one is engaged in good faith > encryption research, the Court is instructed to consider > factors including whether the results of the putative > encryption research are disseminated in a manner designed to > advance the state of knowledge of encryption technology > versus facilitation of copyright infringement, whether the > person in question is engaged in legitimate study of or work > in encryption, and whether the results of the research are > communicated in a timely fashion to the copyright owner.152 > I agree that Kaplan is completely wrong here. Defense had a number of experts testify that "full disclosure" is, at least, one of the best ways "to advance the state of the art in encryption technology", if not the best. This is especially true because by the time 2600 posted DeCSS, the "horse had escaped from the barn" and the DVD CCA/MPAA were making the classic mistake: trying to shoot the messenger instead of accepting the message of their broken "security" measure and figuring out how to deal with that. 2600's actions to prevent the suppression of the truth about CSS certainly added to the lore about encryption and security measures and how they should and should not be applied. Plaintiffs had their own security experts, but this might be a place where the an appeals court reweighing the facts could make a big difference for us (since the question of whether 2600 is permitted to engage in full disclosure to advance encryption research is directly related to the core First Amendment issue of whether or not they can post DeCSS). I'm fairly sure our experts at least had better credentials and in my (admittedly biased opinion) they were probably more credible. > Neither of the defendants remaining in this case was or is > involved in good faith encryption research.153 They posted > DeCSS for all the world to see. There is no evidence that > they made any effort to provide the results of the DeCSS > effort to the copyright owners. Surely there is > 40 > no suggestion that either of them made a good faith effort > to obtain authorization from the copyright owners. > Accordingly, defendants are not protected by Section > 1201(g).154 > > > 151 > Id. § 1201(g)(2). > 152 > Id. § 1201(g)(3). > 153 > Ex. 96 (Corley Dep.) at 33. > 154 > In any case, Section 1201(g), where its requirements are > met, is a defense only to claims under > Section 1201(a)(2), not those under Section 1201(b). Kaplan moves back and forth between clauses whenever the mood strikes him. Is this a 1201(a) suit or a 1201(b) suit or both or whatever Kaplan happens to want for his ruling today? I just looked it up and Kaplan made a big point in the preliminary injuction hearing that the suit was being brought under 1201(a)(2), so Robin Gross shouldn't even be talking about what's in 1201(b). Did the MPAA add a 1201(b) violation at any stage? If not, how can Kaplan use 1201(b) to discredit the defense? > So this needs to be addressed in the appeal. How would you > suggest that the Circuit Court be enlightened as to how to > perform encryption research? > > Taking a stab at this, I would have to say that (C) is the > critical point, "the person made a good faith effort to > obtain authorization before the circumvention". A possible > response is that MoRE did not need any authorization other > than purchasing the disc, player, and drive, nor is it still > clear how one can get such authorization from the copyright > holder except thereby. (D) is moot, and (A) and (B) are > not sufficient, since MPAA would stipulate those. I don't think we even need to go here. MoRE did whatever circumvention they did in Europe, which despite the fantasies of US courts, the DVD CCA and the MPAA, is currently beyond the reach of the DMCA. The question we need to focus on is whether or not 2600 was permitted to traffic in circumvention technology to advance the state of art in encryption research. I think notifying the copyright owner is moot because, as I recall, 2600 began actively trafficking in DeCSS because it was being suppressed --- at the behest of the copyright owners and their agents, the DVD CCA. You don't need to make a "good faith effort" to tell someone something you know they already know. And you could argue that "full disclosure" was a "good faith effort" to get the _true_ import of DeCSS across to the MPAA and DVD CCA. The obstacles I see: 1) Corley's testimony that he wasn't engaged in encryption research. Of course, that doesn't mean he can't advance it indirectly, but it doesn't help us. 2) The statute's "sole purpose" in 1201(g). This I don't see a way to get around. 3) The statute's "working collaboratively" for the trafficking exception in 1201(g). If we have enough facts in about open-source development, it would be fair to say that you could "work collaboratively" with the entire Internet, but it will be a very hard sell. - Ravi Nanavati From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 26 23:45:04 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA20351 for dvd-discuss-outgoing; Sat, 26 Aug 2000 23:45:04 -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 XAA20348 for ; Sat, 26 Aug 2000 23:44:53 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id XAA09824 for dvd-discuss@eon.law.harvard.edu; Sat, 26 Aug 2000 23:54:16 -0400 Date: Sat, 26 Aug 2000 23:54:11 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Defense outline? Message-ID: <20000826235410.P6634@eldritchpress.org> References: <20000824193955.446.qmail@web513.mail.yahoo.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <20000824193955.446.qmail@web513.mail.yahoo.com>; from bryan_w_taylor@yahoo.com on Thu, Aug 24, 2000 at 12:39:55PM -0700 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, Aug 24, 2000 at 12:39:55PM -0700, Bryan Taylor wrote: > > --- "James S. Tyre" wrote: > > > >Soon enough, the defense will file it's appeal to the 2nd Circuit > > >and we'll start work on an amicus for that appeal. > > > Timing: If memory serves, an amicus brief in support of an appellant > > must be filed within seven calendar days after appellant's brief > > is filed, so there is not a big gap between the two deadlines. > > Well, that's good to know. I seem to recall seeing a "briefing > schedule" for the Eldred appeal. I hope that there are some preliminary > formalities that occur first so that the defense's filing of it's brief > won't come out of the blue and that we'll know when these deadlines are approaching. In the appeal of Eldred v Reno, plaintiffs were allowed only one amicus brief. More to come at Supreme Court time. Stay tuned to OpenLaw. My lawyer couldn't explain, either, why or even if the clock in the Supreme Court is set 20 minutes fast. From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 26 23:46:18 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA20396 for dvd-discuss-outgoing; Sat, 26 Aug 2000 23:46:18 -0400 Received: from mercury.clearway.com (c100.clearway.com [199.103.231.100]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id XAA20393 for ; Sat, 26 Aug 2000 23:46:18 -0400 Received: by c100.clearway.com with Internet Mail Service (5.5.2650.21) id ; Sat, 26 Aug 2000 23:49:54 -0400 Message-ID: From: Leland Ray To: "'dvd-discuss@eon.law.harvard.edu'" Subject: [dvd-discuss] OT: What would Kaplan have done? Date: Sat, 26 Aug 2000 23:49:53 -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 This is from the New York Law Journal (http://www.nylj.com/update.html). The plaintiffs really should have drawn Kaplan for the case, and sued under the DMCA. Maybe the movies could be CSSed and put on DVD? --------------------------------------- Citing the "unclean hands" doctrine, a Southern District judge has refused to permanently enjoin a Hell's Kitchen adult video store from selling unlicensed copies of a distributor's X-rated films. Judge John S. Martin had previously denied a motion seeking a seizure order in the case, Devils Films v. Nectar Video, 98 Civ. 8016 (JSM), after viewing three of the films and finding them to be obscene, "hard-core pornography bereft of any plot, and with very little dialogue." In the decision, the judge used the same rationale to deny the motion for a permanent injunction, writing that "the Court will not aid and abet the plaintiff's pornography business by implicitly agreeing to use its contempt powers to punish the defendant from copying the plaintiff's pornography." From dvd-discuss-owner@eon.law.harvard.edu Sat Aug 26 23:52:41 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA20659 for dvd-discuss-outgoing; Sat, 26 Aug 2000 23:52:41 -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 XAA20656 for ; Sat, 26 Aug 2000 23:52:40 -0400 Received: from mit.edu (h0050da62b39d.ne.mediaone.net [24.147.217.121]) by chmls05.mediaone.net (8.8.7/8.8.7) with ESMTP id XAA24370; Sat, 26 Aug 2000 23:52:59 -0400 (EDT) Message-ID: <39A8911B.1D1E483C@mit.edu> Date: Sat, 26 Aug 2000 23:55:07 -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] 40-bit encryption (Was Re: code as speech) References: <8nui25$m7u$1@blowfish.isaac.cs.berkeley.edu> <8nvr2p$o5p$1@blowfish.isaac.cs.berkeley.edu> <20000826210548.G6634@eldritchpress.org> <39A88E74.D3CDF922@mit.edu> Content-Type: text/plain; charset=iso-8859-1 Content-Transfer-Encoding: 8bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Ravi Nanavati wrote: > > Neither of the defendants remaining in this case was or is > > involved in good faith encryption research.153 They posted > > DeCSS for all the world to see. There is no evidence that > > they made any effort to provide the results of the DeCSS > > effort to the copyright owners. Surely there is > > 40 > > no suggestion that either of them made a good faith effort > > to obtain authorization from the copyright owners. > > Accordingly, defendants are not protected by Section > > 1201(g).154 > > > > > > 151 > > Id. § 1201(g)(2). > > 152 > > Id. § 1201(g)(3). > > 153 > > Ex. 96 (Corley Dep.) at 33. > > 154 > > In any case, Section 1201(g), where its requirements are > > met, is a defense only to claims under > > Section 1201(a)(2), not those under Section 1201(b). > > Kaplan moves back and forth between clauses whenever the > mood strikes him. Is this a 1201(a) suit or a 1201(b) > suit or both or whatever Kaplan happens to want for > his ruling today? I just looked it up and Kaplan made a big > point in the preliminary injuction hearing that the suit > was being brought under 1201(a)(2), so Robin Gross shouldn't > even be talking about what's in 1201(b). Did the MPAA > add a 1201(b) violation at any stage? If not, how can Kaplan > use 1201(b) to discredit the defense? OK, I made a mistake here. I just remembered the amended complaint and the MPAA did add a violation for "circumventing a Copyright Protection System" which would be 1201(b). We'd probably have to demonstrate that CSS couldn't possibly protect an exclusive right of the copyright holder (which is true, but, in the face of Kaplan's ruling, hard to prove) to get out of this. Are we permitted to introduce mathematical proofs about encryption systems at the appeals level? (Probably not, but they are pure logic, not actual facts... In this instance, Kaplan's ruling turns on the equivalent of 2+2=5 and it would be nice if we could use that...). - Ravi Nanavati From dvd-discuss-owner@eon.law.harvard.edu Sun Aug 27 00:12:01 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA21027 for dvd-discuss-outgoing; Sun, 27 Aug 2000 00:12:01 -0400 Received: from mercury.clearway.com (c100.clearway.com [199.103.231.100]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id AAA21024 for ; Sun, 27 Aug 2000 00:11:59 -0400 Received: by c100.clearway.com with Internet Mail Service (5.5.2650.21) id ; Sun, 27 Aug 2000 00:15:35 -0400 Message-ID: From: Leland Ray To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] 40-bit encryption (Was Re: code as speech) Date: Sun, 27 Aug 2000 00:15:31 -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 Actually, now that you mention it the encryption research has some persuasion (although I think it is weaker than interoperability). It is not for the court to say that because of educational background or profession that a person is or is not participating in good faith research. For example, assume that my doctor writes me a prescription for Prozac. I take the drug, and publish notes on a web site about how my emotions change. I then decide to stop taking the drug, and write a note saying that it did not help my condition. Is that act not good faith medical research? Even given all the facts that I am not a doctor, not familiar with study methods for drugs, etc. The fact is I did an experiment and evaluated the results. I participated in a scientific process. I mean, MoRE did research into how a program runs, and expressed the practical ideas as code. About the same time, a hobbyist published notes -- hypothetical -- about the CSS system. These ideas were later incorporated into more code. 2600 picked up the effort and reported it, including how to find the research products. Because each member of the research chain did not know who exactly would continue the effort, they used a "wide" dispersion mechanism to communicate the ideas, which is as much related to scientific research as it is open source development. You know, all too often science advances by widely scattered individuals using public communication channels such as 2600 to keep abreast of each other. From dvd-discuss-owner@eon.law.harvard.edu Sun Aug 27 00:17:49 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA21148 for dvd-discuss-outgoing; Sun, 27 Aug 2000 00:17:49 -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 AAA21145 for ; Sun, 27 Aug 2000 00:17:37 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id AAA09878 for dvd-discuss@eon.law.harvard.edu; Sun, 27 Aug 2000 00:27:00 -0400 Date: Sun, 27 Aug 2000 00:26:54 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Consent (was Re: [dvd-discuss] OpenCSS - A new open standard for content protection Message-ID: <20000827002654.Q6634@eldritchpress.org> References: Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: ; from haceaton@hotmail.com on Thu, Aug 24, 2000 at 03:57:37PM -0400 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, Aug 24, 2000 at 03:57:37PM -0400, Harold Eaton wrote: > Paul Fenimore wrote: > [snip] > > > > >[ Page 33, Universal v. Reimerdes, SDNY decision opinion ] > >As CSS, in the ordinary course of its operation--that is, when DeCSS or > >some other decryption program is not employed--"actually works" to > >prevent access to the protected work, it "effectively controls access" > >within the contemplation of the statute. > > > > > >While this isn't blatantly wrong (because the two processes are the same) > >it > >does leave the unwary reader with the impression that CSS is _only_ > >a "technological measure", that it is not a "process" too; and that DeCSS > >might implement a _different_ process even if one understands that CSS > >is both "process" and "technology". > > CSS is a many-headed hydra. I believe that Kaplan is saying that > the encryption and disc production portions of "CSS", in the absence > of the decryption portion of "CSS" (when ... decryption ... is not > employed) serves to deny access. But so did the box the disc came > in, and the plastic surrounding that etc. etc. e.g. Kaplan could > just have well written: I don't pretend to understand how to interpret 1201, nor how to make it stand up as any reasonable interpretation. But maybe somebody can explain to me the difference between as the House Judiciary Committe report says, "what it means for a technological measure to 'effectively control access to a work' . . . and to 'effectively protect a right of a copyright owner under this title' . . . ." Are these supposed to be the same thing or different things? Kaplan's citing this phrase "actually works" is not enough to help my feeble brain. I can see, for example, a set of keys that are supposed to AUTHENTICATE the user as being the owner of the disc. I can see some form of scrambling that is supposed to try to prevent the user from COPYING the copyrighted material. But are these the same under the law? Just because they are similarly forms of scrambling or encryption does not mean that the copyright law ought to treat them the same. After all, the "authority" or "consent" of the copyright holder might well be different in the two cases. And thus if the "process" that CSS uses does "prevent access" to the protected work, does this include scrambling that is used to prevent copying? For example, CSS and Macrovision are two different processes. Does Kaplan mean to imply that if you have one, you necessarily have the other? If so, where is the piece of paper that states the copyright holder wishes to grant authority this way? Because I have trouble distinguishing between CSS and DeCSS when it comes to comparing the "process"--each seems pretty much the same, since the user has the keys legitimately from the disc and the drive, and the "process" works in exactly the same way for ACCESS CONTROL. I mean, isn't Kaplan's argument exactly circular--that the CSS program is "effective access control" just because CSS is "authorized" and the other, DeCSS, isn't, in some way? And then we get to footnote 137, where there is further confusion by the introduction of the term "consent": ...they argue that DeCSS does not circumvent CSS within the meaning of the statute because the Copyright Act does not grant the copyright holder the right to prohibit purchasers from decrypting. As the copyright holder has no statutory right to prohibit decryption, the argument goes, decryption cannot be understood as unlawful circumvention. Def. Post-Trial Mem. 10-13. The argument is pure sophistry. The DMCA proscribes trafficking in technology that decrypts or avoids an access control measure without the copyright holder consenting to the decryption or avoidance. See JUDICIARY COMM. REP. at 17-18 (fair use applies "where the access is authorized"). But if both CSS and DeCSS are identical processes of decryption, how can one be unlawful and the other not? Where is this separate process of distinguishing between the two by a separate act of "consent"? It evidently does not come, in his opinion, by means of purchasing the keys of the disc, player, and drive. And CSS does not protect--"effectively" or otherwise--the copyright owner from the user's fairly accessing the material on the disc and then using some other program to COPY the material. COPY CONTROL might be part of a constitutional statute of copyright, if it allowed fair use (as 1201 is intended to do). But how ACCESS CONTROL can be made into a proxy for that is beyond me, legally or technologically. DA, where are you? From dvd-discuss-owner@eon.law.harvard.edu Sun Aug 27 00:22:38 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA21192 for dvd-discuss-outgoing; Sun, 27 Aug 2000 00:22:38 -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 AAA21189 for ; Sun, 27 Aug 2000 00:22:27 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id AAA09897 for dvd-discuss@eon.law.harvard.edu; Sun, 27 Aug 2000 00:31:50 -0400 Date: Sun, 27 Aug 2000 00:31:45 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] consumer fraud Message-ID: <20000827003145.R6634@eldritchpress.org> References: <20000823215039.23414.qmail@web512.mail.yahoo.com> <00082320410700.18057@frankenstein.lumbercartel.com> <20000824115303.A31598@lemuria.org> <00082406050900.24566@frankenstein.lumbercartel.com> <20000824103206.D667@localhost> <39A55386.ED5C0458@mit.edu> <20000824145524.A1728@localhost> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <20000824145524.A1728@localhost>; from fenimore@roadrunner.com on Thu, Aug 24, 2000 at 02:55:24PM -0600 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, Aug 24, 2000 at 02:55:24PM -0600, Paul Fenimore wrote: >... > Either: > A. The law contradicts itself and is unconstitutionally vague, or > B. As Congress intended, "access" means commerically significant > access, i.e. the acquisition of the work. No more non-sense. The > plain-English meaning of 1201(c)(1) and 109(c) is preserved, and > 1201(a) still makes sense. I vote (A), or rather, that the law is precise in its self-contradiction. Otherwise it would never have passed Congress. By thine own words shalt thou convicteth thee. --Poet. From dvd-discuss-owner@eon.law.harvard.edu Sun Aug 27 00:34:52 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA21282 for dvd-discuss-outgoing; Sun, 27 Aug 2000 00:34:52 -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 AAA21279 for ; Sun, 27 Aug 2000 00:34:51 -0400 Message-ID: <20000827043440.23166.qmail@web510.mail.yahoo.com> Received: from [64.81.25.36] by web510.mail.yahoo.com; Sat, 26 Aug 2000 21:34:40 PDT Date: Sat, 26 Aug 2000 21:34:40 -0700 (PDT) From: Bryan Taylor Subject: [dvd-discuss] Encryption Research (Was Re: 40-bit encryption) To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --- Ravi Nanavati wrote: > The obstacles I see: > > 1) Corley's testimony that he wasn't engaged in encryption > research. Of course, that doesn't mean he can't advance > it indirectly, but it doesn't help us. He was asked to make a conclusion of law, and to the extend that he made one favorable to the plaintiffs is a tribute to their propaganda's persuasiveness, but not to their correctness. I haven't read what he said, but what he obviously meant was that he didn't do "original" encryption research that was scientifically novel. As a journalist, he was a second tier encryption researcher, who surveyed the field for new and interesting results and explained them to his audience. The First Amendment cannot countenence a "PhD's only" speaker requirement. Never the less, Corley is clearly employed, as a security journalist, which would subsume the field of encryption technology. Corley did research the cracking of DVD's, collect his results in printed form, and disseminate them for the purpose of advancing knowledge in the field of security and informing the public, which includes the plaintiffs. Both public education and plaintiffs education could have and should have resulted in better encryption products in the future. > 2) The statute's "sole purpose" in 1201(g). This I don't > see a way to get around. This is in (g)(4)(A), but we are trying to invoke (g)(4)(B). > 3) The statute's "working collaboratively" for the > trafficking exception in 1201(g). If we have enough > facts in about open-source development, it would be > fair to say that you could "work collaboratively" with > the entire Internet, but it will be a very hard sell. Isn't that exactly what the open source movement is? The statue contradicts itself by requiring "the information derived from the encryption research [to be] disseminated" in (g)(3)(A), but it appears to limit this to collaborators in (g)(4). __________________________________________________ Do You Yahoo!? Yahoo! Mail - Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Sun Aug 27 00:43:40 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA21441 for dvd-discuss-outgoing; Sun, 27 Aug 2000 00:43:40 -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 AAA21438 for ; Sun, 27 Aug 2000 00:43:39 -0400 Message-ID: <20000827044328.5027.qmail@web515.mail.yahoo.com> Received: from [64.81.25.36] by web515.mail.yahoo.com; Sat, 26 Aug 2000 21:43:28 PDT Date: Sat, 26 Aug 2000 21:43:28 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] Defense outline? To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --- Eric Eldred wrote: > In the appeal of Eldred v Reno, plaintiffs were allowed only > one amicus brief. More to come at Supreme Court time. Stay > tuned to OpenLaw. What was the page limit, BTW? > My lawyer couldn't explain, either, why or even if the clock > in the Supreme Court is set 20 minutes fast. What do you mean? __________________________________________________ Do You Yahoo!? Yahoo! Mail - Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Sun Aug 27 00:46:31 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA21492 for dvd-discuss-outgoing; Sun, 27 Aug 2000 00:46:31 -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 AAA21489 for ; Sun, 27 Aug 2000 00:46:20 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id AAA09933 for dvd-discuss@eon.law.harvard.edu; Sun, 27 Aug 2000 00:55:43 -0400 Date: Sun, 27 Aug 2000 00:55:38 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] US v. Mendehlson Message-ID: <20000827005538.S6634@eldritchpress.org> References: <20000824220143.29461.qmail@web515.mail.yahoo.com> <39A5A4EF.D2699A70@mit.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <39A5A4EF.D2699A70@mit.edu>; from ravi_n@mit.edu on Thu, Aug 24, 2000 at 06:42:55PM -0400 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, Aug 24, 2000 at 06:42:55PM -0400, Ravi Nanavati wrote: >... > > The device section of the opinion (section 4) is also troubling > because it is a precedent that says that Congress can ban a class > of devices (devices for illegal bookmaking). A counterargument here > is that Congress has not banned descrambling devices, but conferred > an unconsitutional monopoly on them, but this is weaker. Yet, even when the court found that Congress could ban "flash paper" as devices that could be used in illegal gambling (to conceal evidence of bets upon arrest), it made sure to explain that there had to be intent to use the device for such illegal purpose, and not for purposes of magic, for example. But Kaplan would ban ALL devices used to decrypt, and ALL hyperlinks to such "devices," no matter what the intent. Basically, he refused to hear facts that would contradict him--but the court in Mendehlson was careful to hear the facts and then deal with them one by one. For example, if defendants had carefully marketed the software to those it had reason to believe were private professional gamblers (and thus legal), then it would again be handled on a case-by-case basis. In the case of 2600, it had no reason to believe that DeCSS would be used by anyone to infringe on copyright--using DeCSS implies that one owns the disc already, and everybody still agrees that making a bit-by-bit copy over the Internet takes too long and is too expensive. We still don't know where the separate "consent" or "authorization" of the copyright holder comes from in Kaplan's argument. This case I think can help the "overbroad" argument. From dvd-discuss-owner@eon.law.harvard.edu Sun Aug 27 01:13:32 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id BAA21729 for dvd-discuss-outgoing; Sun, 27 Aug 2000 01:13:32 -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 BAA21726 for ; Sun, 27 Aug 2000 01:13:21 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id BAA09991 for dvd-discuss@eon.law.harvard.edu; Sun, 27 Aug 2000 01:22:44 -0400 Date: Sun, 27 Aug 2000 01:22:39 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Time Warner engaging in DeCSS linking Message-ID: <20000827012239.T6634@eldritchpress.org> References: <001901c00eb0$c4dfad00$87ce0593@ia.nsc.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: ; from rongus@tiac.net on Fri, Aug 25, 2000 at 01:05:01PM -0400 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, Aug 25, 2000 at 01:05:01PM -0400, Ron Gustavson wrote: >... > | Note: Pages will open in a new browser window > | External sites are not endorsed by CNN Interactive. > > Perhaps 2600 only needed some Javascript and a little boilerplate to > avoid this whole thing? I remember when I was a kid I enjoyed the book, "The Great Escape," where a bunch of British aviators in a German camp were allowed to ooh and aah over a late-model Mercedes some colonel drove to the camp, showing the superiority of German technology. The Mercedes drove away with the driver's manual in the glove compartment--stamped with a rubber stamp that read, "Passed by the British Board of Censors." Certainly a little note to this effect might be worthy: "2600 cannot guarantee that the code you receive, when you convert this text into a link, is actually illegal according to Judge Kaplan." From dvd-discuss-owner@eon.law.harvard.edu Sun Aug 27 01:26:14 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id BAA21840 for dvd-discuss-outgoing; Sun, 27 Aug 2000 01:26:14 -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 BAA21837 for ; Sun, 27 Aug 2000 01:26:03 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id BAA10030 for dvd-discuss@eon.law.harvard.edu; Sun, 27 Aug 2000 01:35:27 -0400 Date: Sun, 27 Aug 2000 01:35:22 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] watermarking article Message-ID: <20000827013522.U6634@eldritchpress.org> References: <00082512432402.24844@www.rjmconsulting.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <00082512432402.24844@www.rjmconsulting.com>; from rmiller@duskglow.com on Fri, Aug 25, 2000 at 12:42:39PM -0700 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, Aug 25, 2000 at 12:42:39PM -0700, Russell Miller wrote: > > They bought the law, surely they're immune from its enforcement. > > > Even though I'm being sarcastic, I'm afraid that's actually the state of > affairs. Try to sue them for violation of the DMCA and watch where it goes. That's (seriously) one good reason to hang in there. At the moment, the computer companies haven't had opportunity to rise to the threat of somebody else creating a monopoly in their back yard. But this may change. For example, a surprising number of companies have come to the aid of Napster, to try to keep the part of the DMCA that exempts ISPs--not because they agree with Napster's business model. Similarly, RealNetworks and Streambox got in a tangle over reformatting content from one media format to another, and the DMCA was invoked to straighten things out. It is curious that Microsoft was on the side of those against the DMCA in that case. Sooner or later, corporations will find that fair competition, not monopoly, is the way to assure great technology. But I agree that it is a depressing time right now. One can only be encouraged by the huge interest in this list--I fell behind for a week and now I'll never catch up, even with a high-bandwidth connection! Somebody, tell me how the movie ends! From dvd-discuss-owner@eon.law.harvard.edu Sun Aug 27 01:33:18 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id BAA21923 for dvd-discuss-outgoing; Sun, 27 Aug 2000 01:33:18 -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 BAA21920 for ; Sun, 27 Aug 2000 01:33:17 -0400 Received: from ip115.bedford2.ma.pub-ip.psi.net ([38.32.10.115]) by relay21.smtp.psi.net with smtp (Exim 3.13 #3) id 13Sv4Z-0004OI-00 for dvd-discuss@eon.law.harvard.edu; Sun, 27 Aug 2000 01:33:36 -0400 From: Ron Gustavson To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Time Warner engaging in DeCSS linking Date: Sun, 27 Aug 2000 01:26:21 -0400 Message-ID: References: <001901c00eb0$c4dfad00$87ce0593@ia.nsc.com> <20000827012239.T6634@eldritchpress.org> In-Reply-To: <20000827012239.T6634@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 BAA21921 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sun, 27 Aug 2000 01:22:39 -0400, Eric Eldred wrote: >Certainly a little note to this effect might be worthy: >"2600 cannot guarantee that the code you receive, when >you convert this text into a link, is actually illegal >according to Judge Kaplan." Does the fact that they've now removed the link in any way discredit them as an autonomous news organization? __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Sun Aug 27 01:35:41 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id BAA21966 for dvd-discuss-outgoing; Sun, 27 Aug 2000 01:35:41 -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 BAA21963 for ; Sun, 27 Aug 2000 01:35:30 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id BAA10058 for dvd-discuss@eon.law.harvard.edu; Sun, 27 Aug 2000 01:44:54 -0400 Date: Sun, 27 Aug 2000 01:44:49 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] MPAA is now claiming Chinese bootleg DVDs made with DeCSS Message-ID: <20000827014449.V6634@eldritchpress.org> References: <39A6CEEC.B0BFA359@uic.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: ; from rongus@tiac.net on Fri, Aug 25, 2000 at 04:09:38PM -0400 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, Aug 25, 2000 at 04:09:38PM -0400, Ron Gustavson wrote: > this is great... > > | Robert Pitkin, executive vice president of the Intellectual > | Property Foundation, a group set up to combat video piracy > | in China, told the audience there are more than 200,000 > | outlets for illegal videos in China and that 80 to 90 percent > | of all movies sold in the country are bootlegs. Amazing! Hollywood DVDs made in English capture 90% of the market for movies in China, despite Hollywood's greatest attempts to stop this from happening! And despite the fact that hardly any Chinese viewers have DVD players--they use VCD players, don't they? From dvd-discuss-owner@eon.law.harvard.edu Sun Aug 27 01:42:09 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id BAA22021 for dvd-discuss-outgoing; Sun, 27 Aug 2000 01:42:09 -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 BAA22018 for ; Sun, 27 Aug 2000 01:41:58 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id BAA10077 for dvd-discuss@eon.law.harvard.edu; Sun, 27 Aug 2000 01:51:22 -0400 Date: Sun, 27 Aug 2000 01:51:17 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] (fwd) ALERT: FCC considers restricting digital cable Message-ID: <20000827015117.W6634@eldritchpress.org> References: <39A6DBD0.F2252460@mindspring.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <39A6DBD0.F2252460@mindspring.com>; from mickeym@mindspring.com on Fri, Aug 25, 2000 at 04:49:20PM -0400 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, Aug 25, 2000 at 04:49:20PM -0400, mickeym wrote: > > http://www.fcc.gov/Speeches/Kennard/2000/spwek001.html > > Consumers can have choice without theft. The technology can be used, for > example, to limit use of the > programming to one copy, or one viewing, or multiple copies and viewings > for a price. This was the concept > behind Divix, even though that particular solution was not accepted by > the marketplace. But the technology that presents the problem also > offers the promise of a solution. We must not let the naysayers stop > progress toward a solution. > I love it. The Power of Positive Thinking that has made America so great. If the free market rejects it, we can force them to adopt our solution. Just (Don't) Say No! From dvd-discuss-owner@eon.law.harvard.edu Sun Aug 27 02:40:57 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id CAA22256 for dvd-discuss-outgoing; Sun, 27 Aug 2000 02:40:57 -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 CAA22253 for ; Sun, 27 Aug 2000 02:40:45 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id CAA10256 for dvd-discuss@eon.law.harvard.edu; Sun, 27 Aug 2000 02:50:10 -0400 Date: Sun, 27 Aug 2000 02:50:04 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Penguinista.com articles Message-ID: <20000827025004.X6634@eldritchpress.org> References: <20000826195320.584.qmail@web511.mail.yahoo.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <20000826195320.584.qmail@web511.mail.yahoo.com>; from bryan_w_taylor@yahoo.com on Sat, Aug 26, 2000 at 12:53:20PM -0700 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sat, Aug 26, 2000 at 12:53:20PM -0700, Bryan Taylor wrote: >... > I really think the EFF needs to go on the offensive here. Take > Pavlovich on as a client, and file suit in the 5th Circuit against the > DVD-CCA, MPAA, and maybe Microsoft too for antitrust violations, misuse > of copyright, lack of trade secret protection via Federal Copyright Act > preemption and to get a declaritory judgement that LiViD meets DMCA > muster. I agree. This time we get to set the stage. Texas would be great because the court would have to rule on Vault v Quaid as well. Even if they got Matt into California, they will have a hard time, because the Uniform Trade Secrets Act adopted by California specifically excludes reverse engineering (alone) from one of the "improper methods" that must be involved in violation of trade secret law. But Texas is better. As I suggested before being shot down by rst and dcs, I do think it would be a good idea to go for LiViD rather than DeCSS. Not that I don't want to win for 2600--I do. But there remains a vexing problem hanging over from the NY case that complicates matters for LiViD, and might make it hard for one to predict if the DeCSS decision implies that LiViD would be "circumvention." That little problem is understanding what the authority model is for 1201. Kaplan seems to have understood that the movie studios own the copyrights on content and they didn't license access for DeCSS or LiViD. But he didn't rule on the case where the movie studios don't own the copyright--he just pointed out that it was not a question before him. I say raise it this time. Get a content copyright holder who is willing to put up the money to issue a DVD disc and authorize it to be decrypted with LiViD. The issue then becomes, can LiViD ever be released, or never. Leave it up to a judge to decide, but before release, not after, so that it is a matter of prior restraint too. If it is not actually issued yet then no question of possible infringement should arise. And the judge will have a hard time balancing infringement anyway. It may also be a matter of interstate commerce that would be appropriate for a federal court to decide. If ever, then release it. MPAA or DVD-CCA will appeal and the case will go to the Supreme Court with at least that issue in our favor. If never, then we will have established that DMCA has a hidden side-effect of enforcing through federal criminal law a monopoly trust that improperly ties content copyright with player licenses. In just Corley, we have trouble raising this issue, at least until we can come up with a convincing explanation of some authority model. In neither case will we be worse off, I believe. We are not trying an endrun around Kaplan, we are just going to court to establish whether this business is legal in Texas. And maybe George W. will point out that Silicon Valley has no more right to be the computer capital of the world than Austin or Houston. Surely some Texas computer companies will find fault with the concept that a California company can stop a Texas company from reverse engineering a product, when it is not illegal anywhere, in spite of what the DVD-CCA falsely claims. From dvd-discuss-owner@eon.law.harvard.edu Sun Aug 27 02:45:15 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id CAA22436 for dvd-discuss-outgoing; Sun, 27 Aug 2000 02:45:15 -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 CAA22433 for ; Sun, 27 Aug 2000 02:45:04 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id CAA10277 for dvd-discuss@eon.law.harvard.edu; Sun, 27 Aug 2000 02:54:29 -0400 Date: Sun, 27 Aug 2000 02:54:24 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] DVD CCA Opposition to Pavlovich Quash Motion Message-ID: <20000827025424.Y6634@eldritchpress.org> References: <20000826193224.28314.qmail@web509.mail.yahoo.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: ; from rongus@tiac.net on Sat, Aug 26, 2000 at 05:41:46PM -0400 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sat, Aug 26, 2000 at 05:41:46PM -0400, Ron Gustavson wrote: >.. > I see "shooting > a bullet into the state" as an attack on the nature of the Internet itself. > You have to take the bullets with the gold coins. If DVDCCA wants to > sue to disconnect California from the Internet, that might be an option. How about setting up a giant firewall to keep the bad guys out (or in). Maybe they could make money on it by selling service to the Chinese and other states. From dvd-discuss-owner@eon.law.harvard.edu Sun Aug 27 03:01:33 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id DAA22502 for dvd-discuss-outgoing; Sun, 27 Aug 2000 03:01:33 -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 DAA22499 for ; Sun, 27 Aug 2000 03:01:22 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id DAA10341 for dvd-discuss@eon.law.harvard.edu; Sun, 27 Aug 2000 03:10:46 -0400 Date: Sun, 27 Aug 2000 03:10:41 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: Paladin Press (was Re: [dvd-discuss] 2600 web site Message-ID: <20000827031041.Z6634@eldritchpress.org> References: <20000827033807.6021.qmail@web509.mail.yahoo.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <20000827033807.6021.qmail@web509.mail.yahoo.com>; from bryan_w_taylor@yahoo.com on Sat, Aug 26, 2000 at 08:38:07PM -0700 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sat, Aug 26, 2000 at 08:38:07PM -0700, Bryan Taylor wrote: > > --- Eric Eldred wrote: > > Anybody know that happened in "the recent settlement of the Hit Man > > lawsuit"? If I recall correctly, it had to do with a book that > > was purchased by a person who then killed another person, and the > > publisher was charged with being an accessory because the information > > in the book was supposedly used to commit the crime. > > After the Circuit Court overturned their summary judgement, the Supreme > Court denied certiori and they settled. They agreed to stop publishing > the book, which is available on the internet here: > http://www.overthrow.com/hitmanonline.html > > The legal precedent analysed the "aiding and abetting" lawsuit under > the advocacy of illegal acts "incitement to immenent lawless action" > standard (the site above has a little info about it). There was a post > in the last few days with a link to the opinion and two articles about > the story. Thanks. I saw those later. But the Paladin Press site also has a "legal notice" that seems to be inspired by the settlement. It appears rather harmless, though, just a redeclaration that the works it uses should not be used in any illegal act. I wonder if some court might not just recommend that Corley reuse the same "legal notice" and be done with it. What is more alarming are the references to some Explosives Act that the Press says prevents them from publishing certain information, not even with that warning. This would seem to be placing books in the same category as criminal devices (or now, computer software). From dvd-discuss-owner@eon.law.harvard.edu Sun Aug 27 03:09:33 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id DAA22611 for dvd-discuss-outgoing; Sun, 27 Aug 2000 03:09:33 -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 DAA22608 for ; Sun, 27 Aug 2000 03:09:30 -0400 Received: (from paul@localhost) by dial116.roadrunner.com (8.8.7/8.8.7) id BAA00951 for dvd-discuss@eon.law.harvard.edu; Sun, 27 Aug 2000 01:11:21 -0600 Date: Sun, 27 Aug 2000 01:11:20 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] DVD CCA Opposition to Pavlovich Quash Motion Message-ID: <20000827011120.A533@localhost> References: <20000826193224.28314.qmail@web509.mail.yahoo.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: ; from rongus@tiac.net on Sat, Aug 26, 2000 at 05:41:46PM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sat, Aug 26, 2000 at 05:41:46PM -0400, Ron Gustavson wrote: [ ... ] > And, being that it was a dial-up BBS, it was pre-Internet. I see "shooting > a bullet into the state" as an attack on the nature of the Internet itself. > You have to take the bullets with the gold coins. If DVDCCA wants to > sue to disconnect California from the Internet, that might be an option. Firing bullets is more of the "hyperlinks are active code" B.S. Folks in California *retrieve* the material from a web page. DeCSS is not a gun. And no one in Texas pulled the trigger on their super-8 movie projector. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Sun Aug 27 03:10:09 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id DAA22622 for dvd-discuss-outgoing; Sun, 27 Aug 2000 03:10:09 -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 DAA22616 for ; Sun, 27 Aug 2000 03:09:57 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id DAA10363 for dvd-discuss@eon.law.harvard.edu; Sun, 27 Aug 2000 03:19:22 -0400 Date: Sun, 27 Aug 2000 03:19:17 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] 40-bit encryption (Was Re: code as speech) Message-ID: <20000827031917.A6634@eldritchpress.org> References: <8nui25$m7u$1@blowfish.isaac.cs.berkeley.edu> <8nvr2p$o5p$1@blowfish.isaac.cs.berkeley.edu> <20000826210548.G6634@eldritchpress.org> <39A88E74.D3CDF922@mit.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <39A88E74.D3CDF922@mit.edu>; from ravi_n@mit.edu on Sat, Aug 26, 2000 at 11:43:48PM -0400 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sat, Aug 26, 2000 at 11:43:48PM -0400, Ravi Nanavati wrote: >... > 1) Corley's testimony that he wasn't engaged in encryption > research. Of course, that doesn't mean he can't advance > it indirectly, but it doesn't help us. Well, it makes little difference, because even if he were the person doing the research, he still wouldn't be allowed to publish it, according to Kaplan. > 2) The statute's "sole purpose" in 1201(g). This I don't > see a way to get around. Okay, throw out 1201 as unconstitutional. It attempts to ban speech by content and prior restraint on publication. The great Constitution of the United States is supposed to protect citizens against the power of government. Its Copyright Clause resoundingly affirms the positive duty of government to "promote the progress of science and the useful arts" by PUBLISHING WORKS and subjecting them to public debate. What Kaplan suggests here is that if 1201(g) conflicts with the Constitution, throw out the Constitution. > 3) The statute's "working collaboratively" for the > trafficking exception in 1201(g). If we have enough > facts in about open-source development, it would be > fair to say that you could "work collaboratively" with > the entire Internet, but it will be a very hard sell. Well, the reverse engineering and security analysis were classic enough open source feats to merit assignment in many computer science security classes. There is no way this would have happened if it was not done collaboratively. We already had testimony from Stevenson, Johansen, Touretzky, and others on this very point. From dvd-discuss-owner@eon.law.harvard.edu Sun Aug 27 03:24:30 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id DAA22727 for dvd-discuss-outgoing; Sun, 27 Aug 2000 03:24:30 -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 DAA22721 for ; Sun, 27 Aug 2000 03:24:15 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id DAA10395 for dvd-discuss@eon.law.harvard.edu; Sun, 27 Aug 2000 03:33:39 -0400 Date: Sun, 27 Aug 2000 03:33:34 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Defense outline? Message-ID: <20000827033334.B6634@eldritchpress.org> References: <20000827044328.5027.qmail@web515.mail.yahoo.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <20000827044328.5027.qmail@web515.mail.yahoo.com>; from bryan_w_taylor@yahoo.com on Sat, Aug 26, 2000 at 09:43:28PM -0700 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sat, Aug 26, 2000 at 09:43:28PM -0700, Bryan Taylor wrote: > > --- Eric Eldred wrote: > > > In the appeal of Eldred v Reno, plaintiffs were allowed only > > one amicus brief. More to come at Supreme Court time. Stay > > tuned to OpenLaw. > > What was the page limit, BTW? http://eon.law.harvard.edu/openlaw/eldredvreno/walterscheid.html > > My lawyer couldn't explain, either, why or even if the clock > > in the Supreme Court is set 20 minutes fast. > > What do you mean? I'll have to put the whole article here since it's not otherwise online, and hope that at least one of you will spring for a sub to the magazine itself--next to The Economist, it's the best magazine in America: > [read last paragraph!] > > TROUBLE AHEAD > > FIRST PERSON > by Peter Ayton > "New Scientist," 29 April 2000, p43 > www.newscientist.com (this article not online) > Copyright 2000 Reed Business Information Ltd. England > > WHY does everything take longer to finish and cost more than we > think it will? The Channel Tunnel was supposed to cost UKP2.6 > billion. In fact, the final bill came to UKP15 billion. The > Jubilee Line extension to the London Underground cost UKP3.5 > billion, about four times the original estimate. There are many > other examples: the London Eye, the Channel Tunnel rail link. > > This is not an exclusively British disease. In 1957, engineers > forecast that the Sydney Opera House would be finished in 1963 at > a cost of A$7 million. A scaled-down version costing $102 million > finally opened in 1973. In 1969, the mayor of Montreal announced > that the 1976 Olympics would cost C$120 million and "can no more > have a deficit than a man can have a baby". Yet the stadium roof > alone--which was not finished until 13 years after the > games--cost C$120 million. > > You might assume that gross incompetence is behind such > fiascos--either that or a Machiavellian plot to secure approval > for projects that once started cannot easily be cancelled. But > research carried out at the University of Waterloo in Ontario by > psychologist Roger Buehler and colleagues suggests that the main > cause may lie deeper. Buehler found that students consistently > underestimated how long it would take them to finish their > assignments. They seemed to have an over-idealised vision of a > smooth future and rarely anticipated more than trivial > impediments. > > Of course, as anyone who has had to listen to students' excuses > will know, work schedules have a habit of being disrupted by all > kinds of unimaginable events. In his book "Godel, Escher, > Bach," Douglas Hofstadter proposed Hofstadter's law: it always > takes longer than you expect--even when you take Hofstadter's law > into account. Life is richer than any fiction so it is impossible > to imagine everything that could disrupt a plan. > > There are exceptions. When I appeared on a television programme > to discuss why people are so often late, I was introduced to a > professor of literature who is always absurdly early. He imagines > any number of potential catastrophes that could disrupt his > plans, and will arrange to arrive at airports some eight hours > before departure. [Charles Lindbergh always arrived a couple of hours early for his commercial flights on Pan Am--he must have had experience with judging proper planning.] > To have a hope of predicting how long something will take or how > much it will cost, you need to check the past. As Danish > philosopher Soren Kierkegaard said, while life has to be lived > forwards it can only be understood by looking backwards. This > seems fine when we are judging other people's work. When asked to > predict how long fellow students would take to complete a task, > Buehler's subjects immediately pointed to their previous > performances on meeting deadlines and adjusted their forecasts > accordingly. However, when asked to predict their own completion > times they blithely ignored the lessons of their own previous > missed deadlines and suggested hopelessly optimistic schedules. > They only changed their predictions when pushed to imagine a > scenario in which their plans were disrupted. > > Such short-sightedness results in some bizarre habits. While I > was in Washington DC recently I visited the Supreme Court > building. My guide stopped to point out the court clock, which > has been kept 10 minutes fast since the 1860s. Apparently this > proved an excellent method for keeping proceedings punctual. It > is a nice irony that the ultimate arbiter of truth and justice > has to lie to itself in order to function properly. Lessig was Scalia's law clerk, but he says he doubts this story. Hope we find out one way or another--for the truth's sake! And in any case, don't be late with those briefs--be at least 20 minutes early! From dvd-discuss-owner@eon.law.harvard.edu Sun Aug 27 06:10:05 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id GAA24951 for dvd-discuss-outgoing; Sun, 27 Aug 2000 06:10:05 -0400 Received: from ramtop.demon.co.uk (phil@ramtop.demon.co.uk [194.222.228.63]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id GAA24948 for ; Sun, 27 Aug 2000 06:10:02 -0400 Received: (from phil@localhost) by ramtop.demon.co.uk (8.9.3/8.9.3) id LAA01012 for dvd-discuss@eon.law.harvard.edu; Sun, 27 Aug 2000 11:10:12 +0100 Date: Sun, 27 Aug 2000 11:10:12 +0100 From: Phil Harrison To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] 2600 web site Message-ID: <20000827111012.A821@ramtop.demon.co.uk> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <20000823183454.15205.qmail@web511.mail.yahoo.com> <20000826213324.I6634@eldritchpress.org> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii Content-Disposition: inline User-Agent: Mutt/1.2.5i In-Reply-To: <20000826213324.I6634@eldritchpress.org>; from eldred@eldritchpress.org on Sat, Aug 26, 2000 at 09:33:24PM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sat, Aug 26, 2000 at 09:33:24PM -0400, Eric Eldred wrote: > On Wed, Aug 23, 2000 at 11:34:54AM -0700, Bryan Taylor wrote: > > > > You left one out: > > http://www.overthrow.com/hitmanonline.html > > Protected by the DMCA because the background color on the > web page is dark reddish-brown and the text is otherwise > illegible if one does not "circumvent" the controls? > Does that mean that lynx is a circumvention device? :-) -- Phil Harrison From dvd-discuss-owner@eon.law.harvard.edu Sun Aug 27 08:21:47 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id IAA25219 for dvd-discuss-outgoing; Sun, 27 Aug 2000 08:21:47 -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 IAA25216 for ; Sun, 27 Aug 2000 08:21:46 -0400 Received: from Jana-Server (user-38ld4c2.dialup.mindspring.com [209.86.145.130]) by blount.mail.mindspring.net (8.9.3/8.8.5) with SMTP id IAA23834 for ; Sun, 27 Aug 2000 08:22:05 -0400 (EDT) Message-ID: <39A90817.1AEB4DB7@mindspring.com> Date: Sun, 27 Aug 2000 08:22:47 -0400 From: mickeym X-Mailer: Mozilla 4.7 [en] (Win95; I) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] (fwd) ALERT: FCC considers restricting digital Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > mickeym writes: > > > What is "5C" ? > > DTCP. 5C stands for "5 Companies". (Toshiba and Matsushita, who > created CSS, plus Hitachi, Intel, and Sony.) > > It's a CP spec for a digital bus, the leading proposal in the CE > industry. > > http://www.dtcp.com/ > > Gotta love these little nonprofits that manage CP standards, logos, > and trademarks, and sue people... > Thanks, I need to read more about it because I see it referenced a lot in various writings. The thing that really ticks me (being a hardware guy) is that DMCA, the CCA's license, and this "5C" thing, all seem to work from the idea that is is possible to make the datastream inaccessible to the user. That just blows my mind, as there is not a single byte, register, I/O location, disk area, video buffer, or whatever, that is not accessible to ME. The assumption that some part of MY computer can be made inaccessible is ludicrous, yet this is exactly what these groups have managed to convince the lawmakers of. BTW: www.dtcp.com is running Apache/1.3.3 (Unix) PHP/3.0.5 on BSD/OS mickeym From dvd-discuss-owner@eon.law.harvard.edu Sun Aug 27 09:52:50 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA25549 for dvd-discuss-outgoing; Sun, 27 Aug 2000 09:52:50 -0400 Received: from tneu.visi.com (tneu.visi.com [209.98.6.48]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id JAA25546 for ; Sun, 27 Aug 2000 09:52:48 -0400 Received: from tneu.visi.com (tneu.visi.com [163.228.19.198]) by tneu.visi.com (Postfix) with ESMTP id 3217B392 for ; Sun, 27 Aug 2000 08:39:47 -0500 (CDT) Date: Sun, 27 Aug 2000 08:39:46 -0500 (CDT) From: tim To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] How Kaplan got it in the fist place In-Reply-To: <39A90817.1AEB4DB7@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 Is there any way to tell how this case managed to land itself on Kaplan's desk in the first place? I smell a rat - I don't know if it would help us or not to know, but I think it's too much coincidence for lady luck to bear... -- =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- What the president of the Motion Picture Association of America says about taking away your constitutional rights: "I'm rather jubilant now. What Judge Kaplan did was blow away every one of these brittle and fragile rebuttals. He threw out fair use; he threw out reverse engineering; he threw out linking." - Jack Valenti, president of the Motion Picture Association of America. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- ______ _ __ "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 / <_/ / / < / (_; Sun, 27 Aug 2000 10:03:42 -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 KAA03986 for ; Sun, 27 Aug 2000 10:03:59 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id KAA18775; Sun, 27 Aug 2000 10:03:59 -0400 (EDT) Date: Sun, 27 Aug 2000 10:03:59 -0400 (EDT) Message-Id: <200008271403.KAA18775@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] DVD CCA Opposition to Pavlovich Quash Motion In-Reply-To: References: <20000826193224.28314.qmail@web509.mail.yahoo.com> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Ron Gustavson writes: > My point was the jusidiction was questioned there. The court found > the Thomases (of Milpitas, CA) guilty of not abiding by the community > decency standards of western TN. This is an area that the MPA may > not want to revisit, lest they one day be held accountable to Taliban > standards. It's worth remembering that one justification which Dean Marks cited for region codes in the Stanford LOC hearing was, in fact, compliance with the dictates of foreign censors: PAGE 262 1 MR. MARKS: Another reason why we need 2 regional coding, why we do regional coding is that 3 the law in various territories is different with 4 regard to censorship requirements. So we cannot 5 simply distribute the same work throughout the world 6 in the same version. Local laws impose censorship 7 regulations on us that require us to both exhibit 8 and distribute versions of the films that comply 9 with those censorship requirements. Of course, if things are actually meant to work like this, then the region boundaries have to coincide with national borders, which is only strictly the case for China (region 6). That's Time-Warner --- fighting for Chinese censorship, restraint of trade, force-fed ads and [da-dum] the American way... rst From dvd-discuss-owner@eon.law.harvard.edu Sun Aug 27 10:13:35 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA25849 for dvd-discuss-outgoing; Sun, 27 Aug 2000 10:13:35 -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 KAA25846 for ; Sun, 27 Aug 2000 10:13:34 -0400 Received: from Jana-Server (user-38ld5i5.dialup.mindspring.com [209.86.150.69]) by smtp10.atl.mindspring.net (8.9.3/8.8.5) with SMTP id KAA02092 for ; Sun, 27 Aug 2000 10:13:53 -0400 (EDT) Message-ID: <39A9223A.BA457FE0@mindspring.com> Date: Sun, 27 Aug 2000 10:14:18 -0400 From: mickeym X-Mailer: Mozilla 4.7 [en] (Win95; I) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] (fwd) ALERT: FCC considers restricting digital Content-Type: text/plain; charset=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 scary: http://www.dtcp.com/data/dtcp_tut.pdf On the slide called "Content Protection Goal Content Protection Goal" it aims to "Stop unauthorized, casual copying of commercial entertainment content" by "Encrypted transfer, decrypt only if receiving device is certified to handle content in a secure manner." I think that it is absurd to force a PC to meet this description. mickeym From dvd-discuss-owner@eon.law.harvard.edu Sun Aug 27 10:28:40 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA25951 for dvd-discuss-outgoing; Sun, 27 Aug 2000 10:28:40 -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 KAA25948 for ; Sun, 27 Aug 2000 10:28:39 -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 KAA04873 for ; Sun, 27 Aug 2000 10:29:00 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id KAA18843; Sun, 27 Aug 2000 10:28:59 -0400 (EDT) Date: Sun, 27 Aug 2000 10:28:59 -0400 (EDT) Message-Id: <200008271428.KAA18843@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Consent (was Re: [dvd-discuss] OpenCSS - A new open standard for content protection In-Reply-To: <20000827002654.Q6634@eldritchpress.org> References: <20000827002654.Q6634@eldritchpress.org> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Eric Eldred writes: > But maybe somebody can explain to me the difference between > as the House Judiciary Committe report says, > "what it means for a technological measure to 'effectively control > access to a work' . . . and to 'effectively protect a right of a copyright owner under > this title' . . . ." > > Are these supposed to be the same thing or different things? The first phrase is defined in the law in 1201(a)(3), the second in 1201(b)(2). > But are these the same under the law? Just because > they are similarly forms of scrambling or encryption does > not mean that the copyright law ought to treat them the > same. After all, the "authority" or "consent" of the > copyright holder might well be different in the two cases. Well, the legislative history shows pretty clearly that 1201(b) and (a) were at least *meant* to cover two different sorts of technical mechanisms, though it is mixed on whether they intended to create a new right to control access. Quotations below. Of course, even if 1201(a) does establish a new right, it is debatable whether that right is the indefinite patent-like monopoly claimed by the MPAA. I've argued extensively for another interpretation (which avoids a whole lot of constitutional problems, though arguably not al, and also recognizes DeCSS as a legal alternate implementation, and not circumvention). But you all know where to find that argument if you want it. rst quotes: On the distinction between the two sections, here's a quote from a letter Howard Coble, chair of submcommittee on Courts and Intellectual Property, which was introduced to the record As it was introduced, H.R. 2281 contained two important safeguards for fair use. First, the bill dealt separately with technological measures that prevent access and technological measures that prevent copying. As to the latter, the bill contained no prohibition on the act of circumbention itself, leaving users free to circumvent such measures in order to make fair use copies. Second, the savings clause in subsection 1201(d) ensures that defenses to copyright protection, including fair use, are unaffected by (CR (House) p. H7098, Aug. 4 1998) Note that Coble says that there was no intent to create a new right. But then Bliley, chair of the Commerce Committee (which did an extensive rewrite job on the bill, largely adopted in conference), had already said: Let us make no mistake about the scope of what we are doing here today in adopting H.R. 2281, about the tremendously powerful new right to control access to information that we are granting to information owners for the very first time. (ibid., p. H7094) Sigh... From dvd-discuss-owner@eon.law.harvard.edu Sun Aug 27 10:34:51 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA26074 for dvd-discuss-outgoing; Sun, 27 Aug 2000 10:34:51 -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 KAA26071 for ; Sun, 27 Aug 2000 10:34:50 -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 KAA05136; Sun, 27 Aug 2000 10:35:09 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id KAA18890; Sun, 27 Aug 2000 10:35:09 -0400 (EDT) Date: Sun, 27 Aug 2000 10:35:09 -0400 (EDT) Message-Id: <200008271435.KAA18890@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Cc: junger@samsara.law.cwru.edu Subject: Re: [dvd-discuss] More on Content Neutrality In-Reply-To: <20000826193939.E6634@eldritchpress.org> References: <39A30ABE.88C6239F@mediaone.net> <200008230002.UAA03831@samsara.law.cwru.edu> <20000826193939.E6634@eldritchpress.org> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Eric Eldred writes: > The "significant governmental interest" has to be apparent > from Congressional intent and history, and has to be > constitutional. But in DMCA no legislative history supports > the idea that Congress meant to forbid content of all software > programs that decrypt unless "authorized" by DVD-CCA. Maybe > "black boxes," but not software as speech. Overbroad, not > tailored, no significant governmental interest. Remember, there is extensive legislative history (quotes from both houses *and* the conference committee report) documenting their intention to *preserve* Universal v. Sony... rst From dvd-discuss-owner@eon.law.harvard.edu Sun Aug 27 10:34:39 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA26066 for dvd-discuss-outgoing; Sun, 27 Aug 2000 10:34:39 -0400 Received: from smtp02.primenet.com (smtp02.primenet.com [206.165.6.132]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id KAA26063 for ; Sun, 27 Aug 2000 10:34:37 -0400 Received: (from daemon@localhost) by smtp02.primenet.com (8.9.3/8.9.3) id HAA19582 for ; Sun, 27 Aug 2000 07:32:43 -0700 (MST) Received: from sessions.phx.primenet.com(206.132.239.114), claiming to be "heorot.lumbercartel.com" via SMTP by smtp02.primenet.com, id smtpdAAAZ4aimM; Sun Aug 27 07:32:38 2000 Received: from frankenstein.lumbercartel.com (IDENT:dcs@frankenstein.lumbercartel.com [192.168.6.2]) by heorot.lumbercartel.com (8.9.3/8.8.7) with SMTP id HAA13635 for ; Sun, 27 Aug 2000 07:34:49 -0700 From: "D. C. Sessions" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] 40-bit encryption (Was Re: code as speech) Date: Sun, 27 Aug 2000 07:21:20 -0700 X-Mailer: KMail [version 1.0.29] Content-Type: text/plain References: <39A88E74.D3CDF922@mit.edu> <20000827031917.A6634@eldritchpress.org> In-Reply-To: <20000827031917.A6634@eldritchpress.org> MIME-Version: 1.0 Message-Id: <00082707230800.09484@frankenstein.lumbercartel.com> Content-Transfer-Encoding: 8bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sun, 27 Aug 2000, Eric Eldred wrote: > On Sat, Aug 26, 2000 at 11:43:48PM -0400, Ravi Nanavati wrote: > > 3) The statute's "working collaboratively" for the > > trafficking exception in 1201(g). If we have enough > > facts in about open-source development, it would be > > fair to say that you could "work collaboratively" with > > the entire Internet, but it will be a very hard sell. > > Well, the reverse engineering and security analysis > were classic enough open source feats to merit > assignment in many computer science security classes. > There is no way this would have happened if it was > not done collaboratively. We already had testimony > from Stevenson, Johansen, Touretzky, and others on > this very point. Research time. Anyone want to bet that there is already precedent citing the fact that ALL research is ultimately collaborative through the process of publication? We may not be able to introduce new evidence, but case law is fair game. -- | Engineers solve problems -- it's what we do. | | Do you want to be a problem? | | D. C. Sessions === dcs@lumbercartel.com | From dvd-discuss-owner@eon.law.harvard.edu Sun Aug 27 11:02:31 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA26206 for dvd-discuss-outgoing; Sun, 27 Aug 2000 11:02:31 -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 LAA26203 for ; Sun, 27 Aug 2000 11:02:30 -0400 Received: from Jana-Server (user-37ka3kb.dialup.mindspring.com [207.69.14.139]) by smtp10.atl.mindspring.net (8.9.3/8.8.5) with SMTP id LAA07259 for ; Sun, 27 Aug 2000 11:02:49 -0400 (EDT) Message-ID: <39A92DE1.ECF509BD@mindspring.com> Date: Sun, 27 Aug 2000 11:04:01 -0400 From: mickeym X-Mailer: Mozilla 4.7 [en] (Win95; I) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] (fwd) ALERT: FCC considers restricting digital Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu When I wrote: > This is scary: > > http://www.dtcp.com/data/dtcp_tut.pdf > > On the slide called "Content Protection Goal Content Protection Goal" it > I only meant to paste once. Should be, 'called "Content Protection Goal", it aims' > aims to "Stop unauthorized, casual copying of commercial entertainment > content" by "Encrypted transfer, decrypt only if receiving device is > certified to handle content in a secure manner." > > I think that it is absurd to force a PC to meet this description. > > mickeym > mickeym ps. it's still a scary slide, even without the repetitive title emphasis... From dvd-discuss-owner@eon.law.harvard.edu Sun Aug 27 12:39:20 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA26618 for dvd-discuss-outgoing; Sun, 27 Aug 2000 12:39:20 -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 MAA26615 for ; Sun, 27 Aug 2000 12:39:19 -0400 Received: from ip215.bedford9.ma.pub-ip.psi.net ([38.32.79.215]) by relay20.smtp.psi.net with smtp (Exim 3.13 #3) id 13T5T9-0004Zo-00 for dvd-discuss@eon.law.harvard.edu; Sun, 27 Aug 2000 12:39:40 -0400 From: Ron Gustavson To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] DVD CCA Opposition to Pavlovich Quash Motion Date: Sun, 27 Aug 2000 12:33:12 -0400 Message-ID: <53giqskdon14rl7m9hd0l31l5a71hh2272@4ax.com> References: <20000826193224.28314.qmail@web509.mail.yahoo.com> <200008271403.KAA18775@soggy-fibers.ai.mit.edu> In-Reply-To: <200008271403.KAA18775@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 MAA26616 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sun, 27 Aug 2000 10:03:59 -0400 (EDT), Robert S. Thau wrote: >Of course, if things are actually meant to work like this, then the >region boundaries have to coincide with national borders, which is >only strictly the case for China (region 6). And DTCP (and its ilk) should make Internet censorship tenable as well, no? I am waiting for the Taliban's content guidelines. I think they should write a PICS scheme. Speaking of regions, I'm still pissed about Mexico. Three hours south of Hollywood and they might as well be on the moon--all in the age of NAFTA. Perhaps George W will be able to get Mexico entered into region #1. (After all. they produce the world's most popular television shows. Sorry Survivor, but it's true.) >That's Time-Warner --- fighting for Chinese censorship, restraint of >trade, force-fed ads and [da-dum] the American way... __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Sun Aug 27 12:53:48 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA26769 for dvd-discuss-outgoing; Sun, 27 Aug 2000 12:53:48 -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 MAA26766 for ; Sun, 27 Aug 2000 12:53:47 -0400 Received: from ip215.bedford9.ma.pub-ip.psi.net ([38.32.79.215]) by relay20.smtp.psi.net with smtp (Exim 3.13 #3) id 13T5hA-0004dK-00 for dvd-discuss@eon.law.harvard.edu; Sun, 27 Aug 2000 12:54:08 -0400 From: Ron Gustavson To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] (fwd) ALERT: FCC considers restricting digital Date: Sun, 27 Aug 2000 12:47:40 -0400 Message-ID: References: <39A90817.1AEB4DB7@mindspring.com> In-Reply-To: <39A90817.1AEB4DB7@mindspring.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 MAA26767 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sun, 27 Aug 2000 08:22:47 -0400, mickeym wrote: >That just blows my mind, as there is not a single byte, register, I/O >location, disk area, >video buffer, or whatever, that is not accessible to ME. The assumption >that some part of MY >computer can be made inaccessible is ludicrous, yet this is exactly what >these groups have >managed to convince the lawmakers of. "My" is an assumption that we make at our peril. __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Sun Aug 27 13:39:51 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA26894 for dvd-discuss-outgoing; Sun, 27 Aug 2000 13:39:51 -0400 Received: from hotmail.com (f151.law9.hotmail.com [64.4.9.151]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id NAA26891 for ; Sun, 27 Aug 2000 13:39:50 -0400 Received: from mail pickup service by hotmail.com with Microsoft SMTPSVC; Sun, 27 Aug 2000 10:39:40 -0700 Received: from 38.30.243.12 by lw9fd.law9.hotmail.msn.com with HTTP; Sun, 27 Aug 2000 GMT X-Originating-IP: [38.30.243.12] From: "Harold Eaton" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] DVD CCA Opposition to Pavlovich Quash Motion Date: Sun, 27 Aug 2000 13:39:40 EDT Mime-Version: 1.0 Content-Type: text/plain; format=flowed Message-ID: X-OriginalArrivalTime: 27 Aug 2000 17:39:40.0871 (UTC) FILETIME=[C74E7D70:01C0104D] Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Robert S. Thau wrote: > >It's worth remembering that one justification which Dean Marks cited >for region codes in the Stanford LOC hearing was, in fact, compliance >with the dictates of foreign censors: > > PAGE 262 > 1 MR. MARKS: Another reason why we need > 2 regional coding, why we do regional coding is that > 3 the law in various territories is different with > 4 regard to censorship requirements. So we cannot > 5 simply distribute the same work throughout the world > 6 in the same version. Local laws impose censorship > 7 regulations on us that require us to both exhibit > 8 and distribute versions of the films that comply > 9 with those censorship requirements. > >Of course, if things are actually meant to work like this, then the >region boundaries have to coincide with national borders, which is >only strictly the case for China (region 6). > >That's Time-Warner --- fighting for Chinese censorship, restraint of >trade, force-fed ads and [da-dum] the American way... Another reason why it's clear that that is a bogus reason for region codes is that they still have to make the effort to sell only region 6 discs in region 6, and NOT sell region 1 discs there, because to do so would be fraud (probably even in China!). Thus it matters not whether the discs and players are coded or not - the distributors still must control what discs go to China. On another matter, rst wrote: >But then Bliley, chair of the Commerce Committee (which did an >extensive rewrite job on the bill, largely adopted in conference), >had already said: > > Let us make no mistake about the scope > of what we are doing here today in adopting H.R. 2281, about the > tremendously powerful new right to control access to information that > we are granting to information owners for the very first time. > > (ibid., p. H7094) which Robert found depressing, but I find uplifting. To me this is prima facia evidence that the DMCA is unconstitutional: it grants exclusive rights to authors that extend for unlimited times! Also those right are not for their "writings", and don't promote the advancement of the arts and sciences. Perhaps some of the supremes could argue against the latter two, but none can find an expiration time for the exclusive right to traffic in access control technology in the statute - because it isn't there. There is no way to save the law: it is unconstitutional. ________________________________________________________________________ Get Your Private, Free E-mail from MSN Hotmail at http://www.hotmail.com From dvd-discuss-owner@eon.law.harvard.edu Sun Aug 27 13:49:37 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA27072 for dvd-discuss-outgoing; Sun, 27 Aug 2000 13:49:37 -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 NAA27069 for ; Sun, 27 Aug 2000 13:49:36 -0400 Received: from ip215.bedford9.ma.pub-ip.psi.net ([38.32.79.215]) by relay20.smtp.psi.net with smtp (Exim 3.13 #3) id 13T6ZA-0004sF-00 for dvd-discuss@eon.law.harvard.edu; Sun, 27 Aug 2000 13:49:57 -0400 From: Ron Gustavson To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] DVD CCA Opposition to Pavlovich Quash Motion Date: Sun, 27 Aug 2000 13:43:29 -0400 Message-ID: <5kkiqs0542lqf87gtm32rcgc8552n6f230@4ax.com> References: <20000826193224.28314.qmail@web509.mail.yahoo.com> <200008271403.KAA18775@soggy-fibers.ai.mit.edu> <53giqskdon14rl7m9hd0l31l5a71hh2272@4ax.com> In-Reply-To: <53giqskdon14rl7m9hd0l31l5a71hh2272@4ax.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 NAA27070 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu >>That's Time-Warner --- fighting for Chinese censorship, restraint of >>trade, force-fed ads and [da-dum] the American way... How about state referendums to "choose" which region to join? Even if most voters eventually choose region 1, the attendant publicity would be enlightening. Hell, I bet Massachusetts would go for #2. __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Sun Aug 27 14:13:27 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA27186 for dvd-discuss-outgoing; Sun, 27 Aug 2000 14:13:27 -0400 Received: from world.std.com (root@world-f.std.com [199.172.62.5]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id OAA27183 for ; Sun, 27 Aug 2000 14:13:26 -0400 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 OAA22402 for ; Sun, 27 Aug 2000 14:12:24 -0400 (EDT) Mime-Version: 1.0 Message-Id: In-Reply-To: <20000826210548.G6634@eldritchpress.org> References: <8nui25$m7u$1@blowfish.isaac.cs.berkeley.edu> <8nvr2p$o5p$1@blowfish.isaac.cs.berkeley.edu> <20000826210548.G6634@eldritchpress.org> Date: Sun, 27 Aug 2000 14:12:17 -0400 To: dvd-discuss@eon.law.harvard.edu From: "Arnold G. Reinhold" Subject: Re: [dvd-discuss] 40-bit encryption (Was Re: code as speech) 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 9:05 PM -0400 8/26/2000, Eric Eldred wrote: >... > >Anyway, we are dealing not with MoRE, but with 2600, a >magazine whose job it is to print news. Part of the news >that 2600 subscribers buy is the results of attacks on >security. By the time 2600 picked it up it was already >available by others to DVD-CCA to fix or to suggest that >authorization be required in a certain way for such >research. Furthermore, the news had already progressed >beyond DeCSS to Stevenson's analysis, hadn't it? > >So I would have to go with the discussion by acknowledged >security experts that Judge Kaplan does not know what he >is talking about here. Congress held off on enforcing the >reverse engineering clause, I submit, for this very reason-- >the ACM and other professionals said that they need a period >of time to make a case for practice--this time has not yet >expired--Kaplan is prejudging the case. > > "Neither of the defendants remaining in this case was or is > involved in good faith encryption research.153" > >What difference does this make? This is like arguing that >The New York Times cannot report on a huge security lapse >at a national security lab, because it is not "engaged in >good faith encryption research." The research was performed >by others--so what, 2600 is a news organization just like >the Times. > > Congress specifically encourages the dissemination of encryption research in the MPAA itself: 1201(g) (3)"Factors in determining exemption. - In determining whether a person qualifies for the exemption under paragraph (2), the factors to be considered shall include - (A) whether the information derived from the encryption research was disseminated, and if so, whether it was disseminated in a manner reasonably calculated to advance the state of knowledge or development of encryption technology, versus whether it was disseminated in a manner that facilitates infringement under this title or a violation of applicable law other than this section, including a violation of privacy or breach of security; " Corley was clearly engaged in dissemination. If Congress considers dissemination a positive factor in determining whether a person qualifies for exemption, it cannot then prohibit dissemination. MPAA might argue that the manner of dissemination facilitated infringement rather than advancing the state of knowledge. But Congress provided no clear standard here and Corley's full and complete account does advance the state of knowledge. A demonstrable break is more likely to affect real-world security practices and therefore exhibiting DeCSS was reasonable. Also DeCSS is not a complete piracy tool and there was no incitement to posting pirated copies or the like. There appears to be a good fit here with the case of Foti v Menlo from the 9th Circuit which Bryan Taylor dug up. As Bryan interpreted it: "...In this case, the 9th Circuit ruled that an otherwise content-neutral test becomes content-based if any of the exceptions to it are content-based. It also found that speech restrictions that turn on shades of intent are impermissibly vague and allow selective enforcement. ..." Sounds like they had 1201g in mind. Foti v. Menlo Park 97-16061 (9th Cir. 1998) http://www.ce9.uscourts.gov/web/newopinions.nsf/4bc2cbe0ce5be94e882569 27007a37b9/850c5f084472591c88256927007d86f1?OpenDocument&Highlight=2,F oti Summary: http://bioinformatics.ucsf.edu/bwtaylor/1st_Amendment/content_neutrali ty.html#Foti_v_Menlo_Park From dvd-discuss-owner@eon.law.harvard.edu Sun Aug 27 14:19:45 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA27289 for dvd-discuss-outgoing; Sun, 27 Aug 2000 14:19:45 -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 OAA27286 for ; Sun, 27 Aug 2000 14:19:36 -0400 Received: from easybase.com (unverified [192.115.162.238]) by server.easybase.com (EMWAC SMTPRS 0.83) with SMTP id ; Sun, 27 Aug 2000 21:18:42 +0300 Message-ID: <39A987B5.A6C98440@easybase.com> Date: Sun, 27 Aug 2000 17:27:17 -0400 From: Moshe Vainer X-Mailer: Mozilla 4.72 [en] (X11; U; Linux 2.2.17-0.16mdk i686) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] DeCSS song Content-Type: text/plain; charset=iso-8859-15 Content-Transfer-Encoding: 8bit X-MIME-Autoconverted: from base64 to 8bit by eon.law.harvard.edu id OAA27287 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Just saw this great story on linuxtoday: http://linuxtoday.com/news_story.php3?ltsn=2000-08-27-007-20-OS-CY A guy wrote a song singing the entire DeCSS code. This makes another argument in Code vs Speech Rgrds, moshev@easybase.com From dvd-discuss-owner@eon.law.harvard.edu Sun Aug 27 14:27:37 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA27344 for dvd-discuss-outgoing; Sun, 27 Aug 2000 14:27:37 -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 OAA27341 for ; Sun, 27 Aug 2000 14:27:34 -0400 Received: (from paul@localhost) by dial147.roadrunner.com (8.8.7/8.8.7) id MAA00845 for dvd-discuss@eon.law.harvard.edu; Sun, 27 Aug 2000 12:29:13 -0600 Date: Sun, 27 Aug 2000 12:29:12 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] 2600 web site Message-ID: <20000827122911.A633@localhost> References: <20000823183454.15205.qmail@web511.mail.yahoo.com> <20000826213324.I6634@eldritchpress.org> <20000827111012.A821@ramtop.demon.co.uk> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <20000827111012.A821@ramtop.demon.co.uk>; from pharrison@ramtop.demon.co.uk on Sun, Aug 27, 2000 at 11:10:12AM +0100 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sun, Aug 27, 2000 at 11:10:12AM +0100, Phil Harrison wrote: > On Sat, Aug 26, 2000 at 09:33:24PM -0400, Eric Eldred wrote: > > On Wed, Aug 23, 2000 at 11:34:54AM -0700, Bryan Taylor wrote: > > > > > > You left one out: > > > http://www.overthrow.com/hitmanonline.html > > > > Protected by the DMCA because the background color on the > > web page is dark reddish-brown and the text is otherwise > > illegible if one does not "circumvent" the controls? > > > Does that mean that lynx is a circumvention device? :-) Only if you license the HTML technology, and the licensed technology requires that client implementations preserve a minimum "quality" of user experience by not displaying plain-text. Never mind that 1201(a) purports to regulate technology, and not the licensing agreements associated with technology, the SDNY isn't interested in subtle differences like a device and a contract. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Sun Aug 27 14:30:24 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA27440 for dvd-discuss-outgoing; Sun, 27 Aug 2000 14:30:24 -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 OAA27437 for ; Sun, 27 Aug 2000 14:30:20 -0400 Received: (from paul@localhost) by dial147.roadrunner.com (8.8.7/8.8.7) id MAA00853 for dvd-discuss@eon.law.harvard.edu; Sun, 27 Aug 2000 12:32:05 -0600 Date: Sun, 27 Aug 2000 12:32:04 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] How Kaplan got it in the fist place Message-ID: <20000827123204.B633@localhost> References: <39A90817.1AEB4DB7@mindspring.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: ; from tim@tneu.visi.com on Sun, Aug 27, 2000 at 08:39:46AM -0500 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sun, Aug 27, 2000 at 08:39:46AM -0500, tim wrote: > "I'm rather jubilant now. What Judge Kaplan did was blow away every one of > these brittle and fragile rebuttals. He threw out fair use; he threw out > reverse engineering; he threw out linking." > > - Jack Valenti, president of the Motion Picture Association of America. What's the citation for this? The last sentence is more true than Valenti intended. Kaplan has indeed thrown these things out, and not just from his court. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Sun Aug 27 14:34:23 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA27486 for dvd-discuss-outgoing; Sun, 27 Aug 2000 14:34:23 -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 OAA27483 for ; Sun, 27 Aug 2000 14:34:20 -0400 Received: (from paul@localhost) by dial147.roadrunner.com (8.8.7/8.8.7) id MAA00861 for dvd-discuss@eon.law.harvard.edu; Sun, 27 Aug 2000 12:36:07 -0600 Date: Sun, 27 Aug 2000 12:36:06 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] (fwd) ALERT: FCC considers restricting digital Message-ID: <20000827123606.C633@localhost> References: <39A9223A.BA457FE0@mindspring.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <39A9223A.BA457FE0@mindspring.com>; from mickeym@mindspring.com on Sun, Aug 27, 2000 at 10:14:18AM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sun, Aug 27, 2000 at 10:14:18AM -0400, mickeym wrote: > > This is scary: > > http://www.dtcp.com/data/dtcp_tut.pdf > > On the slide called "Content Protection Goal Content Protection Goal" it > aims to "Stop unauthorized, casual copying of commercial entertainment > content" by "Encrypted transfer, decrypt only if receiving device is > certified to handle content in a secure manner." > > I think that it is absurd to force a PC to meet this description. It is also unsupported by pre-DMCA copyright. As we discovered from the deposition transcript, the MPAA categorizes *all* unauthorized copying as "piracy". What ever happened to "no bright lines" from Campbell v. Acuff-Rose? It is too late to get this into the SDNY proceeding, but there is still CT. The EBX book spec contains some equally juicy stuff about their attitude towards the audience --- can't trust that bunch of back-stabbing theives. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Sun Aug 27 14:34:58 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA27503 for dvd-discuss-outgoing; Sun, 27 Aug 2000 14:34:58 -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 OAA27500 for ; Sun, 27 Aug 2000 14:34:56 -0400 Received: from mit.edu (h0050da62b39d.ne.mediaone.net [24.147.217.121]) by chmls06.mediaone.net (8.8.7/8.8.7) with ESMTP id OAA28917; Sun, 27 Aug 2000 14:35:16 -0400 (EDT) Message-ID: <39A95FE4.FD624F80@mit.edu> Date: Sun, 27 Aug 2000 14:37:24 -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] How Kaplan got it in the fist place References: <39A90817.1AEB4DB7@mindspring.com> <20000827123204.B633@localhost> Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Paul Fenimore wrote: > > On Sun, Aug 27, 2000 at 08:39:46AM -0500, tim wrote: > > "I'm rather jubilant now. What Judge Kaplan did was blow away every one of > > these brittle and fragile rebuttals. He threw out fair use; he threw out > > reverse engineering; he threw out linking." > > > > - Jack Valenti, president of the Motion Picture Association of America. > > What's the citation for this? The last sentence is more true than > Valenti intended. Kaplan has indeed thrown these things out, and > not just from his court. > > Paul Fenimore It's from a Salon article: http://www.salon.com/tech/log/2000/08/18/decss_trial/ - Ravi Nanavati From dvd-discuss-owner@eon.law.harvard.edu Sun Aug 27 14:34:49 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA27495 for dvd-discuss-outgoing; Sun, 27 Aug 2000 14:34:49 -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 OAA27492 for ; Sun, 27 Aug 2000 14:34:48 -0400 Received: from sites.inka.de (puric.inka.de [212.227.14.17]) by mail.inka.de with esmtp id 13T7Gu-0005hf-00; Sun, 27 Aug 2000 20:35:08 +0200 Received: from localhost by sites.inka.de with local id 13T7Gw-0000MP-00; Sun, 27 Aug 2000 20:35:10 +0200 Date: Sun, 27 Aug 2000 20:35:10 +0200 From: Sham Gardner To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] How Kaplan got it in the fist place Message-ID: <20000827203510.C20385@inka.de> References: <39A90817.1AEB4DB7@mindspring.com> <20000827123204.B633@localhost> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0i In-Reply-To: <20000827123204.B633@localhost>; from fenimore@roadrunner.com on Sun, Aug 27, 2000 at 12:32:04PM -0600 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sun, Aug 27, 2000 at 12:32:04PM -0600, Paul Fenimore wrote: > On Sun, Aug 27, 2000 at 08:39:46AM -0500, tim wrote: > > "I'm rather jubilant now. What Judge Kaplan did was blow away every one of > > these brittle and fragile rebuttals. He threw out fair use; he threw out > > reverse engineering; he threw out linking." > > > > - Jack Valenti, president of the Motion Picture Association of America. > > What's the citation for this? The last sentence is more true than > Valenti intended. Kaplan has indeed thrown these things out, and > not just from his court. It's from a Salon article, I don't have the URL to hand here, but it should be in the history of my browser at work, which I can check tomorrow. Sham -- http://sites.inka.de/risctaker/DeCSS/ "The first speech censored, the first thought forbidden, the first freedom denied, chains us all irrevocably." (Jean-Luc Picard) From dvd-discuss-owner@eon.law.harvard.edu Sun Aug 27 14:46:19 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA27652 for dvd-discuss-outgoing; Sun, 27 Aug 2000 14:46:19 -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 OAA27649 for ; Sun, 27 Aug 2000 14:46:18 -0400 Received: from sites.inka.de (puric.inka.de [212.227.14.17]) by mail.inka.de with esmtp id 13T7S2-0005w6-00; Sun, 27 Aug 2000 20:46:38 +0200 Received: from localhost by sites.inka.de with local id 13T7S5-0000QW-00; Sun, 27 Aug 2000 20:46:41 +0200 Date: Sun, 27 Aug 2000 20:46:41 +0200 From: Sham Gardner To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] How Kaplan got it in the fist place Message-ID: <20000827204641.D20385@inka.de> References: <39A90817.1AEB4DB7@mindspring.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0i In-Reply-To: ; from tim@tneu.visi.com on Sun, Aug 27, 2000 at 08:39:46AM -0500 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sun, Aug 27, 2000 at 08:39:46AM -0500, tim wrote: > Is there any way to tell how this case managed to land itself on Kaplan's > desk in the first place? > > I smell a rat - I don't know if it would help us or not to know, but I > think it's too much coincidence for lady luck to bear... I've been reluctant to mention this, since it was a long time ago and I don't remember uch about it, and it's probably not very useful at that, but I remember seeing a report on Sky News in the UK a few years ago about how plaintiffs in the US sometimes strategically time filing a lawsuit in order to influence the allocation of the judge. It was around the time of the William Kennedy Smith rape trial, which was mentioned (IIRC as an example of a judge that was chosen by a different system immune to this sort of manipulation). That's about as much as I remember and by no means am I suggesting anything like that happened here. Sham -- http://sites.inka.de/risctaker/DeCSS/ "The first speech censored, the first thought forbidden, the first freedom denied, chains us all irrevocably." (Jean-Luc Picard) From dvd-discuss-owner@eon.law.harvard.edu Sun Aug 27 17:44:49 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA28082 for dvd-discuss-outgoing; Sun, 27 Aug 2000 17:44:49 -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 RAA28079 for ; Sun, 27 Aug 2000 17:44:37 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id RAA10982 for dvd-discuss@eon.law.harvard.edu; Sun, 27 Aug 2000 17:54:10 -0400 Date: Sun, 27 Aug 2000 17:54:04 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] (fwd) ALERT: FCC considers restricting digital Message-ID: <20000827175404.A10470@eldritchpress.org> References: <39A9223A.BA457FE0@mindspring.com> <20000827123606.C633@localhost> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <20000827123606.C633@localhost>; from fenimore@roadrunner.com on Sun, Aug 27, 2000 at 12:36:06PM -0600 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sun, Aug 27, 2000 at 12:36:06PM -0600, Paul Fenimore wrote: > On Sun, Aug 27, 2000 at 10:14:18AM -0400, mickeym wrote: > > > > This is scary: > > > > http://www.dtcp.com/data/dtcp_tut.pdf > > > > On the slide called "Content Protection Goal Content Protection Goal" it > > aims to "Stop unauthorized, casual copying of commercial entertainment > > content" by "Encrypted transfer, decrypt only if receiving device is > > certified to handle content in a secure manner." > > > > I think that it is absurd to force a PC to meet this description. > > It is also unsupported by pre-DMCA copyright. As we discovered from the > deposition transcript, the MPAA categorizes *all* unauthorized copying > as "piracy". > > What ever happened to "no bright lines" from Campbell v. Acuff-Rose? It > is too late to get this into the SDNY proceeding, but there is still CT. > The EBX book spec contains some equally juicy stuff about their attitude > towards the audience --- can't trust that bunch of back-stabbing theives. Strange as it may seem, perhaps Congress was not thinking about a PC at the time it wrote DMCA. But if MPAA can't secure the control they want with PCs, then they will move to "appliances" that provide that control (or attempt to do so). Such as digital television sets, DVD drives, or other such products that are simply rented to customers so they can view the content they "purchase" per view. (I have two Netpliance i-Openers, part of the first, failed, trials on that concept.) This is already happening with "eBook" appliances. They are simply a scam to cover up the fact that in no other way can print publishers lock up content against fair use. (I ranted about this even before DMCA, to no avail.) And some resistance from computer manufacturers might account for the delay in implementing SMID. But as often repeated here (sadly) the gnomes that try to control content this way will always lose in the end. Somehow a human eye has to view the text words or video pictures. If PCs can't be used as intended, then humans will have to develop the skills they used to have before machines, and possess in the great thought experiment "Fahrenheit 451." And maybe humans will realize it is not necessary at all to rent such stupid pay-per-view entertainment, and realize they have the power to create such works on their own instead of relying on Hollywood and "the major motion picture" studios to do it for them. Free software is about this process, for users to create and fix their own machines and software, not piracy, your Honor. How do I know that, Sir? I learned it from my big brothers, who devoted a lot of time to "hot rods" in the early 1950s, in spite of scorn from their conventional elders, before they were killed in the U.S. Army. I learned it from my father, who used the open process of science and technology to help launch rockets at Cape Canaveral, and showed me how circuits work by building Heathkits with me. I learned it from my mother, who, in spite of the fact that she never graduated from high school, lobbied the Governor to build a marine biology lab and became a microbiologist with a pile of scientific papers she freely published. All this before computers. That is what made America great, not Hollywood, Sir. And it's that spirit, the freedom the Constitution is supposed to protect, those real dreams, not movie fantasies, that your ruling puts into danger. From dvd-discuss-owner@eon.law.harvard.edu Sun Aug 27 17:49:42 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA28204 for dvd-discuss-outgoing; Sun, 27 Aug 2000 17:49:42 -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 RAA28201 for ; Sun, 27 Aug 2000 17:49:31 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id RAA10995 for dvd-discuss@eon.law.harvard.edu; Sun, 27 Aug 2000 17:59:03 -0400 Date: Sun, 27 Aug 2000 17:58:58 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] DVD CCA Opposition to Pavlovich Quash Motion Message-ID: <20000827175858.B10470@eldritchpress.org> References: <20000826193224.28314.qmail@web509.mail.yahoo.com> <200008271403.KAA18775@soggy-fibers.ai.mit.edu> <53giqskdon14rl7m9hd0l31l5a71hh2272@4ax.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <53giqskdon14rl7m9hd0l31l5a71hh2272@4ax.com>; from rongus@tiac.net on Sun, Aug 27, 2000 at 12:33:12PM -0400 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sun, Aug 27, 2000 at 12:33:12PM -0400, Ron Gustavson wrote: >... > > Speaking of regions, I'm still pissed about Mexico. Three hours south of > Hollywood and they might as well be on the moon--all in the age of NAFTA. > > Perhaps George W will be able to get Mexico entered into region #1. > (After all. they produce the world's most popular television shows. > Sorry Survivor, but it's true.) After U.S. copyright law was passed to normalize terms with other countries after the Uruguay round of GATT, copyright owners were allowed to reassert copyright in the U.S. under certain circumstances, and more or less had to re-register works to get this control. I noticed that most of the registrations appeared to be animated films from Mexico (NAFTA also changed U.S. copyright law at the same time). Apparently these movie producers wanted to protect their works from the "Norteamericano" cartels who otherwise would steal them. Evidently "piracy" goes in only one direction for the MPAA. From dvd-discuss-owner@eon.law.harvard.edu Sun Aug 27 18:14:54 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA28304 for dvd-discuss-outgoing; Sun, 27 Aug 2000 18:14:54 -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 SAA28301 for ; Sun, 27 Aug 2000 18:14:53 -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 PAA18040 for ; Sun, 27 Aug 2000 15:14:54 -0700 Received: (from daw@localhost) by blowfish.isaac.cs.berkeley.edu (8.8.7/8.8.7) id PAA00424; Sun, 27 Aug 2000 15:14:50 -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] Content Based 1201(g) exception (Was: 40-bit encryption) Date: 27 Aug 2000 15:13:40 -0700 Organization: A poorly-installed InterNetNews site Lines: 10 Distribution: isaac Message-ID: <8oc3qk$d4$1@blowfish.isaac.cs.berkeley.edu> References: <20000827032215.22979.qmail@web512.mail.yahoo.com> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Bryan Taylor wrote: > > "Neither of the defendants remaining in this case was or is > > involved in good faith encryption research.153" > > ... and the CS departments at CMU and Princeton's opinions to the > contrary, be damned!? What opinions to the contrary? I did not see any of the expert witnesses you alluded to argue that the defendants were involved in good faith encryption research. Citations welcomed, of course. From dvd-discuss-owner@eon.law.harvard.edu Sun Aug 27 18:24:28 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA28448 for dvd-discuss-outgoing; Sun, 27 Aug 2000 18:24:28 -0400 Received: from abraham.cs.berkeley.edu (abraham.CS.Berkeley.EDU [128.32.37.121]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id SAA28444 for ; Sun, 27 Aug 2000 18:24:27 -0400 Received: from blowfish.isaac.cs.berkeley.edu (blowfish.isaac.cs.berkeley.edu [169.229.3.195]) by abraham.cs.berkeley.edu (8.8.6/8.8.6) with ESMTP id PAA18071 for ; Sun, 27 Aug 2000 15:24:29 -0700 Received: (from daw@localhost) by blowfish.isaac.cs.berkeley.edu (8.8.7/8.8.7) id PAA00483; Sun, 27 Aug 2000 15:24:24 -0700 To: dvd-discuss@eon.law.harvard.edu Path: not-for-mail From: daw@cs.berkeley.edu (David A. Wagner) Newsgroups: isaac.lists.dvd-discuss Subject: Re: Consent (was Re: [dvd-discuss] OpenCSS - A new open standard for content protection Date: 27 Aug 2000 15:24:15 -0700 Organization: A poorly-installed InterNetNews site Lines: 17 Distribution: isaac Message-ID: <8oc4ef$f2$1@blowfish.isaac.cs.berkeley.edu> References: <20000827002654.Q6634@eldritchpress.org> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Eric Eldred wrote: > But maybe somebody can explain to me the difference between > as the House Judiciary Committe report says, > "what it means for a technological measure to 'effectively control > access to a work' . . . and to > 'effectively protect a right of a copyright owner under this title' . . ." I don't know. But I can speculate about some of the possibilities. The former would appear to refer to `access control', e.g., file permission modes; the latter would appear to refer to protection of a right properly afforded to a copyright owner by law, e.g., public performance. I think the two are supposed to be different. Consider the "access vs. use" distinction: prior to the DMCA, copyright holders were given some protection over use of copyrighted works, but not over access to copyrighted works. Maybe the former phrase covers some forms of `access' and the second phrase covers some forms of `use'? From dvd-discuss-owner@eon.law.harvard.edu Sun Aug 27 18:31:30 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA28515 for dvd-discuss-outgoing; Sun, 27 Aug 2000 18:31:30 -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 SAA28512 for ; Sun, 27 Aug 2000 18:31:29 -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 PAA18093 for ; Sun, 27 Aug 2000 15:31:31 -0700 Received: (from daw@localhost) by blowfish.isaac.cs.berkeley.edu (8.8.7/8.8.7) id PAA00516; Sun, 27 Aug 2000 15:31:26 -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] Encryption Research (Was Re: 40-bit encryption) Date: 27 Aug 2000 15:31:16 -0700 Organization: A poorly-installed InterNetNews site Lines: 26 Distribution: isaac Message-ID: <8oc4rk$g3$1@blowfish.isaac.cs.berkeley.edu> References: <20000827043440.23166.qmail@web510.mail.yahoo.com> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Bryan Taylor wrote: > --- Ravi Nanavati wrote: > > The obstacles I see: > > > > 1) Corley's testimony that he wasn't engaged in encryption > > research. > > He was asked to make a conclusion of law, and to the extend that he > made one favorable to the plaintiffs is a tribute to their propaganda's > persuasiveness, but not to their correctness. I haven't read what he > said, but what he obviously meant was that he didn't do "original" > encryption research that was scientifically novel. Are you suggesting that the `encryption research' exemption in the DMCA was intended to cover more than just original research? Do you have any evidence for this? Everything I've seen would indicate that it was intended to cover novel, scientific research. Reporting on others' research results is not itself research. And, just because one's actions have the effect of advancing the state of knowledge in some scientific field, does not mean that one has engaged in research. We might like an exemption for reporting the results of other people's encryption research. Such an exemption might be good law or good policy. It might be required by the First Amendment. But it's not in the DMCA, as far as I can see. From dvd-discuss-owner@eon.law.harvard.edu Sun Aug 27 19:07:25 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA28751 for dvd-discuss-outgoing; Sun, 27 Aug 2000 19:07:25 -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 TAA28748 for ; Sun, 27 Aug 2000 19:07:23 -0400 Received: from jy01 (user-2inih96.dialup.mindspring.com [165.121.69.38]) by granger.mail.mindspring.net (8.9.3/8.8.5) with SMTP id TAA30651 for ; Sun, 27 Aug 2000 19:07:43 -0400 (EDT) Message-Id: <200008272307.TAA30651@granger.mail.mindspring.net> X-Sender: jya@pop.pipeline.com X-Mailer: QUALCOMM Windows Eudora Pro Version 4.0 Date: Sun, 27 Aug 2000 19:00:03 -0400 To: dvd-discuss@eon.law.harvard.edu From: John Young Subject: Re: [dvd-discuss] Encryption Research (Was Re: 40-bit encryption) In-Reply-To: <8oc4rk$g3$1@blowfish.isaac.cs.berkeley.edu> References: <20000827043440.23166.qmail@web510.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 David Wagner wrote: >Reporting on others' research results is not itself research. And, just >because one's actions have the effect of advancing the state of knowledge >in some scientific field, does not mean that one has engaged in research. > >We might like an exemption for reporting the results of other people's >encryption research. Such an exemption might be good law or good policy. >It might be required by the First Amendment. But it's not in the DMCA, >as far as I can see. This is a very interesting point. Would you claim that researchers must publish their own research material in order to share it with other researchers? That is, where collaborative research is being done, as is often the case in cryptology -- your own work an example -- must the researchers rely only on their own means of communication? It seems obvious to me that publication of research is a signficant component of research, as we know from reliance upon libraries, preprints, journals, conference papers, and so on. Most of these resources are not themselves operated by researchers, although the Net offers that promise. Moreover, I believe it was the librarians who were the strongest proponents of interpreting DMCA to preserve freedom of publication. Now one could very well argue that 2600 is nothing but a publication about research of a very unique kind, and it is only Kaplan's prejudice that blinded him to that. Would the 2600 contributors do what they wonderfully do if not inspired by what they share in that forum? And the same for other researchers: how would they know what to research without access to widespread and diverse publications and the healthy criticism that comes from them? 2600 is as important to brilliantly innovative hackers and phreaks as the Library of Congress is to numbbutt legislators. If this is not the case then Cryptome with a lot of other Net sites are are going down the tubes, or rather underground. Although a bunker might be a pretty swell place to do what can't be done openly under DMCA if it is the copyright industry's nuclear option. From dvd-discuss-owner@eon.law.harvard.edu Sun Aug 27 19:26:59 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA28946 for dvd-discuss-outgoing; Sun, 27 Aug 2000 19:26:59 -0400 Received: from mail.lemuria.org (lemuria.borgfelde.ricardo.de [195.244.103.65]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id TAA28943 for ; Sun, 27 Aug 2000 19:26:57 -0400 Received: from lemuria.org by mail.lemuria.org via rsmtp with bsmtp id for ; Mon, 28 Aug 2000 01:24:24 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Received: by lemuria.org via sendmail with stdio id for dvd-discuss@eon.law.harvard.edu; Mon, 28 Aug 2000 01:18:54 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Date: Mon, 28 Aug 2000 01:18:54 +0200 From: Tom Vogt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] (fwd) ALERT: FCC considers restricting digital Message-ID: <20000828011854.B8223@lemuria.org> References: <39A9223A.BA457FE0@mindspring.com> <20000827123606.C633@localhost> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0pre3i In-Reply-To: <20000827123606.C633@localhost> X-Privacy: If you can, please encrypt your mails - finger for key Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Paul Fenimore wrote: > What ever happened to "no bright lines" from Campbell v. Acuff-Rose? It > is too late to get this into the SDNY proceeding, but there is still CT. > The EBX book spec contains some equally juicy stuff about their attitude > towards the audience --- can't trust that bunch of back-stabbing theives. like we said on that other decss list: we're not their enemies, we're their customers. what happened to these people to turn their mental landscape into such a sorry piece of shit? -- "The net treats censorship as a malfunction and re-routes around it." (John Gilmore) From dvd-discuss-owner@eon.law.harvard.edu Sun Aug 27 19:26:57 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA28939 for dvd-discuss-outgoing; Sun, 27 Aug 2000 19:26:57 -0400 Received: from mail.lemuria.org (lemuria.borgfelde.ricardo.de [195.244.103.65]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id TAA28935 for ; Sun, 27 Aug 2000 19:26:55 -0400 Received: from lemuria.org by mail.lemuria.org via rsmtp with bsmtp id for ; Mon, 28 Aug 2000 01:24:24 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Received: by lemuria.org via sendmail with stdio id for dvd-discuss@eon.law.harvard.edu; Mon, 28 Aug 2000 01:17:01 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Date: Mon, 28 Aug 2000 01:17:01 +0200 From: Tom Vogt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] DVD CCA Opposition to Pavlovich Quash Motion Message-ID: <20000828011701.A8223@lemuria.org> References: Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0pre3i In-Reply-To: X-Privacy: If you can, please encrypt your mails - finger for key Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu "Harold Eaton" wrote: > Another reason why it's clear that that is a bogus reason for region > codes is that they still have to make the effort to sell only region > 6 discs in region 6, and NOT sell region 1 discs there, because to > do so would be fraud (probably even in China!). Thus it matters not > whether the discs and players are coded or not - the distributors still > must control what discs go to China. they avoided that trap by displaying the region prominently. distributors play the same game - just look at amazon.com the main issue probably was avoiding imports. if you charge roughly 50% more for a DVD in europe than you do in the states (which is the norm) and otherwise play your games of power and control and whatever other mental masturbations our movie tycoons enjoy, you've got to make sure the pissed of people don't simply get their stuff elsewhere. the same game is currently being played with computer games. the companies in charge there try to make it illegal for shops to sell, say the US version of a game (here in germany). -- "The net treats censorship as a malfunction and re-routes around it." (John Gilmore) From dvd-discuss-owner@eon.law.harvard.edu Sun Aug 27 19:46:50 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA29148 for dvd-discuss-outgoing; Sun, 27 Aug 2000 19:46:50 -0400 Received: from mail.lemuria.org (lemuria.borgfelde.ricardo.de [195.244.103.65]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id TAA29145 for ; Sun, 27 Aug 2000 19:46:49 -0400 Received: from lemuria.org by mail.lemuria.org via rsmtp with bsmtp id for ; Mon, 28 Aug 2000 01:36:15 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Received: by lemuria.org via sendmail with stdio id for dvd-discuss@eon.law.harvard.edu; Mon, 28 Aug 2000 01:29:15 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Date: Mon, 28 Aug 2000 01:29:15 +0200 From: Tom Vogt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] DVD CCA Opposition to Pavlovich Quash Motion Message-ID: <20000828012915.A8324@lemuria.org> References: <20000826193224.28314.qmail@web509.mail.yahoo.com> <200008271403.KAA18775@soggy-fibers.ai.mit.edu> <53giqskdon14rl7m9hd0l31l5a71hh2272@4ax.com> <20000827175858.B10470@eldritchpress.org> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0pre3i In-Reply-To: <20000827175858.B10470@eldritchpress.org> X-Privacy: If you can, please encrypt your mails - finger for key Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Eric Eldred wrote: > I noticed that most of the registrations appeared to > be animated films from Mexico (NAFTA also changed > U.S. copyright law at the same time). Apparently > these movie producers wanted to protect their works > from the "Norteamericano" cartels who otherwise > would steal them. Evidently "piracy" goes in only > one direction for the MPAA. not only for them - the states once were the largest piracy nation on the globe, back when books where the state of the art. the british sure weren't happy. a lot the way it's today with the US and a couple asian states. :) I doubt you changed your ways because you "saw the light". I'd rather guess that pirates turn into law-abiding copyright holders as soon as the cash flow reverses. -- "The net treats censorship as a malfunction and re-routes around it." (John Gilmore) From dvd-discuss-owner@eon.law.harvard.edu Sun Aug 27 19:52:31 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA29268 for dvd-discuss-outgoing; Sun, 27 Aug 2000 19:52:31 -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 TAA29265 for ; Sun, 27 Aug 2000 19:52:29 -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 QAA18411 for ; Sun, 27 Aug 2000 16:52:31 -0700 Received: (from daw@localhost) by blowfish.isaac.cs.berkeley.edu (8.8.7/8.8.7) id QAA00737; Sun, 27 Aug 2000 16:52:27 -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] Encryption Research (Was Re: 40-bit encryption) Date: 27 Aug 2000 16:52:17 -0700 Organization: A poorly-installed InterNetNews site Lines: 28 Distribution: isaac Message-ID: <8oc9jh$n0$1@blowfish.isaac.cs.berkeley.edu> References: <20000827043440.23166.qmail@web510.mail.yahoo.com> <200008272307.TAA30651@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: > It seems obvious to me that publication of research is a signficant > component of research, as we know from reliance upon libraries, > preprints, journals, conference papers, and so on. Most of these > resources are not themselves operated by researchers, although > the Net offers that promise. Of course. You are absolutely correct. Publication plays a very important role in encryption research, yet it appears that publishers, journalists, librarians, webmasters, etc., cannot rely on the `encryption research' exemption for safe harbor merely because they are advancing the state of knowledge in encryption. You eloquently make the case that this is a defect in the law; that the `encryption research' exemption, as set forth in the DMCA, does not achieve its stated purpose; and that Congress did not go far enough to protect encryption research. I won't argue with you on any of those points; they seem to be valid concerns. But we can't make this defect go away by pretending it doesn't exist. Let's face the facts: Journalists like Corley -- or the New York Times -- do not appear to be covered by the encryption research exemption, when they are reporting on the results of other researchers' results. (Maybe they are covered by some other exemption, but it's not the encryption research exemption.) We don't have to like it one bit, but let's not kid ourselves about what the law says. From dvd-discuss-owner@eon.law.harvard.edu Sun Aug 27 19:58:39 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA29332 for dvd-discuss-outgoing; Sun, 27 Aug 2000 19:58:39 -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 TAA29329 for ; Sun, 27 Aug 2000 19:58:38 -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 TAA02357 for ; Sun, 27 Aug 2000 19:59:00 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id TAA20573; Sun, 27 Aug 2000 19:58:59 -0400 (EDT) Date: Sun, 27 Aug 2000 19:58:59 -0400 (EDT) Message-Id: <200008272358.TAA20573@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] DVD CCA Opposition to Pavlovich Quash Motion In-Reply-To: References: Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Harold Eaton writes: > Robert S. Thau wrote: > >But then Bliley, chair of the Commerce Committee (which did an > >extensive rewrite job on the bill, largely adopted in conference), > >had already said: > > > > Let us make no mistake about the scope > > of what we are doing here today in adopting H.R. 2281, about the > > tremendously powerful new right to control access to information that > > we are granting to information owners for the very first time. > > > > (ibid., p. H7094) > > which Robert found depressing, but I find uplifting. To me this is > prima facia evidence that the DMCA is unconstitutional: it grants > exclusive rights to authors that extend for unlimited times! Not necessarily --- 1201(a) repeatedly refers to "the copyright owner", implying strongly that whatever rights it confers are limited to works under copyright, which still nominally does expire eventually. (Copyright expiration may be rapidly becoming the legal equivalent of a purely theoretical construct, like the frictionless tables we all dealt with in Physics 101, but it is still technically on the books). So, circumvention of an access control to gain access to a work which is no longer under copyright cannot *itself* be an offense under 1201(a)(1). If tools required to perform the circumvention (and having no other significant commercial purpose) are obtained from someone else, that's trafficking, which is a separate offense under 1201(a)(2), but the same applies to all of the other circumvention safe harbors under the law (e.g., the "preview" right for libraries which was explicitly written into the law). In short, if you read the "access control" right as being specific to a particular work (being infringed only when access is granted to an unauthorized *person*), then the "control past copyright expiration" case boils down to the fair use case --- it's just another form of legitimate use of a work which an access control might prevent. If you're the MPAA, and you read the "access control" right to confer a right to license players (being infringed when access is granted by means of an unauthorized *device*), that's different of course --- that's a patent of unlimited duration, and unconstitutional on its face. Which is one reason to prefer the former reading to the latter. Another, of course, is that in the former case, DeCSS is plainly legal, since it never grants access in a case where a licensed CSS implementation would not (taking the plaintiffs' experts at their word that region coding and the like are mechanisms which are *separate* from CSS, and that region coding restrictions are not imposed by CSS itself). rst From dvd-discuss-owner@eon.law.harvard.edu Sun Aug 27 20:42:13 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA29473 for dvd-discuss-outgoing; Sun, 27 Aug 2000 20:42:13 -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 UAA29470 for ; Sun, 27 Aug 2000 20:42:12 -0400 Received: from jy01 (user-2inij39.dialup.mindspring.com [165.121.76.105]) by granger.mail.mindspring.net (8.9.3/8.8.5) with SMTP id UAA08147 for ; Sun, 27 Aug 2000 20:42:32 -0400 (EDT) Message-Id: <200008280042.UAA08147@granger.mail.mindspring.net> X-Sender: jya@pop.pipeline.com X-Mailer: QUALCOMM Windows Eudora Pro Version 4.0 Date: Sun, 27 Aug 2000 20:34:23 -0400 To: dvd-discuss@eon.law.harvard.edu From: John Young Subject: Re: [dvd-discuss] Encryption Research (Was Re: 40-bit encryption) In-Reply-To: <8oc9jh$n0$1@blowfish.isaac.cs.berkeley.edu> References: <20000827043440.23166.qmail@web510.mail.yahoo.com> <200008272307.TAA30651@granger.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 David, I understand we are on the same side here, but let's pursue this limited encryption research anomaly for it is the essence of the suit. And the contemptous gauntlet thrown by Kaplan at 2600 and I guess the New York Times. If researchers can publish DeCSS as encryption research in order to share it with other researchers -- and we know some have done precisely that -- how to draw a DMCA line between such researchers and the New York Times and 2600? Both of the latter reach an audience of researchers that an a university site may not, including researchers who may have novel contributions to make if only they learned of the material. To say the DMCA does not permit crossing this line is to grant the argument to the copyright cartel. I believe that line is very much yet to be defined. During deliberation on DMCA legislative there was a lot of horse-trading going on between encryption researchers and the copyright expansionists. And you know that concessions were made for encryption research after a substantial lobbying. What may not have been obvious to the researchers who got what they wanted, a special, if limited, privilege, is what they failed to get beyond that privilege and which is needed to guarantee its regenerative publication, perhaps by not clearly seeing the consequences of the deal they were bamboozled into accepting, DC-whipsay-compromise style by those who want to control the means to publish and market research. Even now there is a chance to affect what interpretation of the DMCA will prevail as the comment period comes to a close. The law is not yet set even in its current form. And it is not yet set for the future despite Kaplan's mindset that it is. Nor could the legal defense team hardly believe otherwise. Still, I would like to hear more of your best critique of what dedicated researchers could muster to protect their own interest and escape the shackles envisioned for them by the copyrightists. I agree we should not be pollyannish about the difficulty of expanding the DMCA to protect secondary and tertiary aspects of research, but I hope privileged researchers will continue to powerfully advocate, as some testified in New York, and others like your affidavited, that publication by others is an integral part of their work. Without that, I suspect the researchers will be driven back into company and governmental enclaves where the property expansionists determine not only what gets published but what gets researched. From dvd-discuss-owner@eon.law.harvard.edu Sun Aug 27 20:52:26 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA29605 for dvd-discuss-outgoing; Sun, 27 Aug 2000 20:52:26 -0400 Received: from hotmail.com (f5.law9.hotmail.com [64.4.9.5]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id UAA29602 for ; Sun, 27 Aug 2000 20:52:25 -0400 Received: from mail pickup service by hotmail.com with Microsoft SMTPSVC; Sun, 27 Aug 2000 17:52:17 -0700 Received: from 38.30.235.116 by lw9fd.law9.hotmail.msn.com with HTTP; Mon, 28 Aug 2000 00:52:17 GMT X-Originating-IP: [38.30.235.116] From: "Harold Eaton" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Encryption Research (Was Re: 40-bit encryption) Date: Sun, 27 Aug 2000 20:52:17 EDT Mime-Version: 1.0 Content-Type: text/plain; format=flowed Message-ID: X-OriginalArrivalTime: 28 Aug 2000 00:52:17.0052 (UTC) FILETIME=[366565C0:01C0108A] Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu David A. Wagner wrote: >Are you suggesting that the `encryption research' exemption in the DMCA >was intended to cover more than just original research? Do you have >any evidence for this? Everything I've seen would indicate that it was >intended to cover novel, scientific research. Well, there is the statute itself; it never mentions original research. It only refers to advancing the state of knowledge, which as you pointed out, does not require original research. _________________________________________________________________________ Get Your Private, Free E-mail from MSN Hotmail at http://www.hotmail.com. Share information about yourself, create your own public profile at http://profiles.msn.com. From dvd-discuss-owner@eon.law.harvard.edu Sun Aug 27 21:01:52 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA29877 for dvd-discuss-outgoing; Sun, 27 Aug 2000 21:01:52 -0400 Received: from hotmail.com (f299.law9.hotmail.com [64.4.8.174]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id VAA29874 for ; Sun, 27 Aug 2000 21:01:51 -0400 Received: from mail pickup service by hotmail.com with Microsoft SMTPSVC; Sun, 27 Aug 2000 18:01:42 -0700 Received: from 38.30.235.116 by lw9fd.law9.hotmail.msn.com with HTTP; Mon, 28 Aug 2000 01:01:42 GMT X-Originating-IP: [38.30.235.116] From: "Harold Eaton" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] DVD CCA Opposition to Pavlovich Quash Motion Date: Sun, 27 Aug 2000 21:01:42 EDT Mime-Version: 1.0 Content-Type: text/plain; format=flowed Message-ID: X-OriginalArrivalTime: 28 Aug 2000 01:01:42.0316 (UTC) FILETIME=[8751D6C0:01C0108B] Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Tom Vogt wrote: >"Harold Eaton" wrote: > > Another reason why it's clear that that is a bogus reason for region > > codes is that they still have to make the effort to sell only region > > 6 discs in region 6, and NOT sell region 1 discs there, because to > > do so would be fraud (probably even in China!). Thus it matters not > > whether the discs and players are coded or not - the distributors still > > must control what discs go to China. > >they avoided that trap by displaying the region prominently. distributors >play the same game - just look at amazon.com > >the main issue probably was avoiding imports. if you charge roughly 50% >more for a DVD in europe than you do in the states (which is the norm) and >otherwise play your games of power and control and whatever other mental >masturbations our movie tycoons enjoy, you've got to make sure the pissed >of people don't simply get their stuff elsewhere. > >the same game is currently being played with computer games. the companies >in charge there try to make it illegal for shops to sell, say the US >version of a game (here in germany). I think you're missing the point. The MPAA representative indicated region coding allowed them to obey censorship laws of foreign countries. If the PRC forbids the importation of the movie "The Last Emperor", then I imagine it is illegal to import that movie into China regardless of what region the disc may be encoded for, and regardless of how prominently the region code is displayed. Thus the region code is meaningless for obeying various local censorship laws. _________________________________________________________________________ Get Your Private, Free E-mail from MSN Hotmail at http://www.hotmail.com. Share information about yourself, create your own public profile at http://profiles.msn.com. From dvd-discuss-owner@eon.law.harvard.edu Sun Aug 27 21:10:30 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA29984 for dvd-discuss-outgoing; Sun, 27 Aug 2000 21:10:30 -0400 Received: from hotmail.com (f174.law9.hotmail.com [64.4.9.174]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id VAA29981 for ; Sun, 27 Aug 2000 21:10:29 -0400 Received: from mail pickup service by hotmail.com with Microsoft SMTPSVC; Sun, 27 Aug 2000 18:10:20 -0700 Received: from 38.30.235.116 by lw9fd.law9.hotmail.msn.com with HTTP; Mon, 28 Aug 2000 01:10:20 GMT X-Originating-IP: [38.30.235.116] From: "Harold Eaton" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] DVD CCA Opposition to Pavlovich Quash Motion Date: Sun, 27 Aug 2000 21:10:20 EDT Mime-Version: 1.0 Content-Type: text/plain; format=flowed Message-ID: X-OriginalArrivalTime: 28 Aug 2000 01:10:20.0677 (UTC) FILETIME=[BC497350:01C0108C] Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Robert S. Thau wrote: >Not necessarily --- 1201(a) repeatedly refers to "the copyright >owner", implying strongly that whatever rights it confers are limited >to works under copyright, which still nominally does expire eventually. >(Copyright expiration may be rapidly becoming the legal equivalent of >a purely theoretical construct, like the frictionless tables we all >dealt with in Physics 101, but it is still technically on the >books). Besides the patent-like rights if the statute is read as in SDNY, there is the point made in the Eldrich case amicus brief that inventors and authors are supposed to be granted the same exclusive rights. So what is the access-control right given to patent holders?? _________________________________________________________________________ Get Your Private, Free E-mail from MSN Hotmail at http://www.hotmail.com. Share information about yourself, create your own public profile at http://profiles.msn.com. From dvd-discuss-owner@eon.law.harvard.edu Sun Aug 27 21:40:05 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA30073 for dvd-discuss-outgoing; Sun, 27 Aug 2000 21:40:05 -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 VAA30070 for ; Sun, 27 Aug 2000 21:40:04 -0400 Received: from mit.edu (h0050da62b39d.ne.mediaone.net [24.147.217.121]) by chmls06.mediaone.net (8.8.7/8.8.7) with ESMTP id VAA22740; Sun, 27 Aug 2000 21:40:24 -0400 (EDT) Message-ID: <39A9C389.4D5EF174@mit.edu> Date: Sun, 27 Aug 2000 21:42:33 -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] DVD CCA Opposition to Pavlovich Quash Motion 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 Harold Eaton wrote: > I think you're missing the point. The MPAA representative indicated > region coding allowed them to obey censorship laws of foreign countries. > If the PRC forbids the importation of the movie "The Last Emperor", > then I imagine it is illegal to import that movie into China > regardless of what region the disc may be encoded for, and regardless > of how prominently the region code is displayed. Thus the region > code is meaningless for obeying various local censorship laws. This is pure speculation, but what I think they mean is that region coding makes it _cheaper_ to obey various local censorship laws. I would guess that there would be compliance costs associated with doing business in China (proving that you aren't importing or marketing prohibited materials), that could be lowered by region coding. If only region 6 players are sold in China they MPAA members do not have to track or control the movement of their DVDs as carefully as they would have to otherwise. Of course, once the Chinese government learns how easy it is to turn a coded DVD player into a region-free one (see the mini-revolution in Europe, for example), this benefit would probably evaporate. - Ravi Nanavati From dvd-discuss-owner@eon.law.harvard.edu Sun Aug 27 22:18:04 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA30392 for dvd-discuss-outgoing; Sun, 27 Aug 2000 22:18:04 -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 WAA30389 for ; Sun, 27 Aug 2000 22:17:52 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id WAA11241 for dvd-discuss@eon.law.harvard.edu; Sun, 27 Aug 2000 22:27:27 -0400 Date: Sun, 27 Aug 2000 22:27:22 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Encryption Research (Was Re: 40-bit encryption) Message-ID: <20000827222722.A11216@eldritchpress.org> References: <20000827043440.23166.qmail@web510.mail.yahoo.com> <200008272307.TAA30651@granger.mail.mindspring.net> <8oc9jh$n0$1@blowfish.isaac.cs.berkeley.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <8oc9jh$n0$1@blowfish.isaac.cs.berkeley.edu>; from daw@cs.berkeley.edu on Sun, Aug 27, 2000 at 04:52:17PM -0700 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sun, Aug 27, 2000 at 04:52:17PM -0700, David A. Wagner wrote: > John Young wrote: > > It seems obvious to me that publication of research is a signficant > > component of research, as we know from reliance upon libraries, > > preprints, journals, conference papers, and so on. Most of these > > resources are not themselves operated by researchers, although > > the Net offers that promise. > > Of course. You are absolutely correct. Publication plays a very > important role in encryption research, yet it appears that publishers, > journalists, librarians, webmasters, etc., cannot rely on the `encryption > research' exemption for safe harbor merely because they are advancing > the state of knowledge in encryption. > > You eloquently make the case that this is a defect in the law; that the > `encryption research' exemption, as set forth in the DMCA, does not > achieve its stated purpose; and that Congress did not go far enough to > protect encryption research. I won't argue with you on any of those > points; they seem to be valid concerns. > > But we can't make this defect go away by pretending it doesn't exist. > Let's face the facts: Journalists like Corley -- or the New York Times > -- do not appear to be covered by the encryption research exemption, > when they are reporting on the results of other researchers' results. > (Maybe they are covered by some other exemption, but it's not the > encryption research exemption.) > > We don't have to like it one bit, but let's not kid ourselves about what > the law says. No, if the law really, indisputably says that, then fine, I'm happy. Much easier to show that DMCA is prima facie unconstitutional. The regulations must be "narrowly" drawn to be specific, and must have a valid "governmental purpose." In this case, Congress would appear to have chosen to allow copyright law to make publication illegal, even where the publication is not a normal copyright infringement, and is outright based on content and police interpretation of intent. This is blatantly in violation of the First Amendment, using any criterion you want. It is really up to the prosecution to supply an explanation of the meaning of this clause. If they can't defend it as constitutional, the whole law has to go! It is THEY who can't pretend this defect doesn't exist. If Corley is not covered, and The New York Times is not covered, Touretzky is not covered (not original research), then what purpose is there for this law? Let's suppose, for example, that the Pentagon Papers were copyrighted by the Rand Corporation (possible), had been put into a database, encrypted with a password, and in the process of being registered for security classification (as the "nuclear secrets" that Dr Lee is supposed to have stolen were). Suppose that Lee or Ellsberg or somebody accessed the papers and gave them to The New York Times. Could the government claim a criminal violation of the DMCA here and prevent The Times from publishing? I'm quite serious about this matter. I wrote Barbara Simons of the ACM before the DMCA was passed and she assured me that reverse engineering was fully protected and the ACM did not agree with my many concerns about the rest of the law. It appears to have turned out that ACM and The New York Times were bamboozled along with the rest of us. This case needs some amicus briefs to call this issue before a judge. Defense had no chance to raise the issue-- Kaplan initiated it on his own. We must. From dvd-discuss-owner@eon.law.harvard.edu Sun Aug 27 22:54:18 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA31150 for dvd-discuss-outgoing; Sun, 27 Aug 2000 22:54:18 -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 WAA31134 for ; Sun, 27 Aug 2000 22:54:06 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id XAA11265 for dvd-discuss@eon.law.harvard.edu; Sun, 27 Aug 2000 23:03:41 -0400 Date: Sun, 27 Aug 2000 23:03:36 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] DVD CCA Opposition to Pavlovich Quash Motion Message-ID: <20000827230336.B11216@eldritchpress.org> References: <200008272358.TAA20573@soggy-fibers.ai.mit.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <200008272358.TAA20573@soggy-fibers.ai.mit.edu>; from rst@ai.mit.edu on Sun, Aug 27, 2000 at 07:58:59PM -0400 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sun, Aug 27, 2000 at 07:58:59PM -0400, Robert S. Thau wrote: > Harold Eaton writes: > > Robert S. Thau wrote: > > >But then Bliley, chair of the Commerce Committee (which did an > > >extensive rewrite job on the bill, largely adopted in conference), > > >had already said: > > > > > > Let us make no mistake about the scope > > > of what we are doing here today in adopting H.R. 2281, about the > > > tremendously powerful new right to control access to information that > > > we are granting to information owners for the very first time. > > > > > > (ibid., p. H7094) > > > > which Robert found depressing, but I find uplifting. To me this is > > prima facia evidence that the DMCA is unconstitutional: it grants > > exclusive rights to authors that extend for unlimited times! > > Not necessarily --- 1201(a) repeatedly refers to "the copyright > owner", implying strongly that whatever rights it confers are limited > to works under copyright, which still nominally does expire eventually. > (Copyright expiration may be rapidly becoming the legal equivalent of > a purely theoretical construct, like the frictionless tables we all > dealt with in Physics 101, but it is still technically on the > books). > > So, circumvention of an access control to gain access to a work which > is no longer under copyright cannot *itself* be an offense under > 1201(a)(1). If tools required to perform the circumvention (and > having no other significant commercial purpose) are obtained from > someone else, that's trafficking, which is a separate offense under > 1201(a)(2), but the same applies to all of the other circumvention > safe harbors under the law (e.g., the "preview" right for libraries > which was explicitly written into the law). > > In short, if you read the "access control" right as being specific to > a particular work (being infringed only when access is granted to an > unauthorized *person*), then the "control past copyright expiration" > case boils down to the fair use case --- it's just another form of > legitimate use of a work which an access control might prevent. I think this is likely what Kaplan meant. (In a footnote he indicates the point is not at hand to consider.) But it is a distinction without a difference. "Access control" is still a "function" that is granted to the DVD-CCA here to control, not the copyright holder. (I still think this is worth a test, just to find out.) It is definitely a new right, one that is not covered by traditional copyright law, and the fact that access and copying are two different functions in the law implies that they come with separate authorizations. And Kaplan says neither comes with first sale. As Vault v Quaid showed, a "fair use right" is not exercisable by a purchaser of copyrighted material if the owner of one copyrighted work can prevent another publisher from issuing the MEANS to decrypt and gain fair use of the first work. As we cited in references Bryan accumulated, the regulations cannot be so strict and broad that they prevent the user from exercising rights under the First Amendment. > If you're the MPAA, and you read the "access control" right to confer > a right to license players (being infringed when access is granted by > means of an unauthorized *device*), that's different of course --- > that's a patent of unlimited duration, and unconstitutional on its > face. > > Which is one reason to prefer the former reading to the latter. Maybe for the MPAA. We are under no obligation to form a constitutional understanding of the statute. In fact, I claim there is none--the law is self-contradictory, on the face of it. > Another, of course, is that in the former case, DeCSS is plainly > legal, since it never grants access in a case where a licensed CSS > implementation would not (taking the plaintiffs' experts at their word > that region coding and the like are mechanisms which are *separate* > from CSS, and that region coding restrictions are not imposed by CSS > itself). Not really, if one goes on to consider various possible scenarios. Suppose that Barnes & Noble issues an encrypted eBook in Microsoft Reader format. Let's say it is Kafka's "Metamorphosis and Other Stories." It is not possible from the description or publication data to determine if the book deserves a new copyright, or if it is in the public domain. In order to use and copy the work, one must FIRST decrypt the work. So ACCESS is being controlled by a publisher who may or may not own the copyright lawfully--nobody can tell until one also violates the DMCA first--or agrees to their license, which is the same thing as agreeing to their copyright, which of course means the copyright is in fact perpetual. The likelihood is that the question of COPYING and copyright infringement would not be raised on its own, but rather be subsumed into the initial crime of ACCESS violation. The accused could not easily defend against the charge of copying OR of access, since the defense depends entirely on ACCESS to the work first, and the license for that is not quite the same as for the copyright. This is not trivial. All the cases, I believe, of violations of DMCA or CSS license are cases involving the Internet. Some of them have revolved around immunity of the ISP to prosecution under the law. What has been happening is that owners of content, whether the content is rightly copyrighted or not, will write the ISP and demand the web publication be removed, and Internet access of the offender pulled. In this case, some administrative, extralegal procedures are being used to punish the alleged offender, and the accused does not get a chance to see the charges or defend against them. This would not happen under previous copyright law that required submission of facts to a judge, and a hearing on the facts, and a defense under fair use law and the First Amendment. This is very important. The very future of the Internet is at stake. We should not cave in here. By the way, the eBook I mentioned above appears to have been legally newly copyrighted. But others are not, so I am decrypting those and reprinting them on my web page. As you say, the law forbids me from telling librarians how to do this themselves, and as you don't say, this is ridiculous and so obviously stupid it doesn't deserve comment. It is only because the DMCA statute uses jargon and confusing words that we are not all outraged at what is happening. And I hope readers of books wake up and see what is happening while they were not going to movies. From dvd-discuss-owner@eon.law.harvard.edu Sun Aug 27 22:59:30 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA31271 for dvd-discuss-outgoing; Sun, 27 Aug 2000 22:59:30 -0400 Received: from mta4.rcsntx.swbell.net (mta4.rcsntx.swbell.net [151.164.30.28]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id WAA31268 for ; Sun, 27 Aug 2000 22:59:29 -0400 Received: from swbell.net ([64.216.208.200]) by mta4.rcsntx.swbell.net (Sun Internet Mail Server sims.3.5.2000.01.05.12.18.p9) with ESMTP id <0FZZ00E2QEIH9N@mta4.rcsntx.swbell.net> for dvd-discuss@eon.law.harvard.edu; Sun, 27 Aug 2000 21:49:29 -0500 (CDT) Date: Sun, 27 Aug 2000 21:40:12 -0500 From: Jolley Subject: [dvd-discuss] Code and assassins To: dvd-discuss Message-id: <39A9D10B.EF3FC5EF@swbell.net> Organization: Southwestern Bell Internet Services MIME-version: 1.0 X-Mailer: Mozilla 4.72 [en]C-SBI-NC472 (Win98; U) Content-type: text/plain; charset=us-ascii Content-transfer-encoding: 7bit X-Accept-Language: en Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I was rereading Kaplan's opening statement and it just doesn't read right. On page 3. K>Computer code is expressive. To that extent, it is a matter of K>First Amendment concern. But computer code is not purely expressive K>any more than the assassination of a political figure is purely a K>political statement. Code causes computers to perform desired K>functions. CODE causes computers to perform desired functions? I thought PEOPLE caused computers to perform desired functions! At the very least it is people, through the use of code, cause computers to perform desired functions. K>Its expressive element no more immunizes its functional K>aspects from regulation than the expressive motives of an assassin K>immunize the assassin's action. I think PEOPLE should be held accountable for their actions. Using expressive code for copyright infringement does not immunize a person from regulation. K>In an era in which the transmission of computer viruses--which, K>like DeCSS, are simply computer code and thus to some degree K>expressive--can disable systems upon which the nation depends and K>in which other computer code also is capable of inflicting other K>harm, society must be able to regulate the use and dissemination K>of code in appropriate circumstances. How about "society must be able to regulate improper use of code in appropriate circumstances." Unleashing a destructive virus is far different from writing a virus. The act of writing a virus or even studying a virus can be a useful and beneficial excercise in learning vulnerabilities of a system and how to protect your system. I would think that most, if not all, of the anti-virus products available today are based on studies of computer viruses. K>The Constitution, after K>all, is a framework for building a just and democratic society. K>It is not a suicide pact. This should turn out to be a classic statement -- why is it relevant to this opinion? It reads like a strong passionate plea to read this opinion as applying good constitutional principles to protect and advance society. Sorry, but it doesn't work for me. I think it could have been better. From dvd-discuss-owner@eon.law.harvard.edu Sun Aug 27 23:01:29 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA31346 for dvd-discuss-outgoing; Sun, 27 Aug 2000 23:01:29 -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 XAA31343 for ; Sun, 27 Aug 2000 23:01:27 -0400 Received: (from paul@localhost) by dial152.roadrunner.com (8.8.7/8.8.7) id VAA00975 for dvd-discuss@eon.law.harvard.edu; Sun, 27 Aug 2000 21:03:19 -0600 Date: Sun, 27 Aug 2000 21:03:18 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Ruben Bolling on the Dewey Decimal System Message-ID: <20000827210317.A952@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 Much more concise and congent than Kaplan's term paper: From dvd-discuss-owner@eon.law.harvard.edu Sun Aug 27 23:03:11 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA31422 for dvd-discuss-outgoing; Sun, 27 Aug 2000 23:03:11 -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 XAA31390 for ; Sun, 27 Aug 2000 23:02:59 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id XAA11276 for dvd-discuss@eon.law.harvard.edu; Sun, 27 Aug 2000 23:12:35 -0400 Date: Sun, 27 Aug 2000 23:12:30 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] DVD CCA Opposition to Pavlovich Quash Motion Message-ID: <20000827231229.C11216@eldritchpress.org> References: Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: ; from haceaton@hotmail.com on Sun, Aug 27, 2000 at 09:01:42PM -0400 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sun, Aug 27, 2000 at 09:01:42PM -0400, Harold Eaton wrote: > Tom Vogt wrote: > > >"Harold Eaton" wrote: > > > Another reason why it's clear that that is a bogus reason for region > > > codes is that they still have to make the effort to sell only region > > > 6 discs in region 6, and NOT sell region 1 discs there, because to > > > do so would be fraud (probably even in China!). Thus it matters not > > > whether the discs and players are coded or not - the distributors still > > > must control what discs go to China. > > > >they avoided that trap by displaying the region prominently. distributors > >play the same game - just look at amazon.com > > > >the main issue probably was avoiding imports. if you charge roughly 50% > >more for a DVD in europe than you do in the states (which is the norm) and > >otherwise play your games of power and control and whatever other mental > >masturbations our movie tycoons enjoy, you've got to make sure the pissed > >of people don't simply get their stuff elsewhere. > > > >the same game is currently being played with computer games. the companies > >in charge there try to make it illegal for shops to sell, say the US > >version of a game (here in germany). > > I think you're missing the point. The MPAA representative indicated > region coding allowed them to obey censorship laws of foreign countries. > If the PRC forbids the importation of the movie "The Last Emperor", > then I imagine it is illegal to import that movie into China > regardless of what region the disc may be encoded for, and regardless > of how prominently the region code is displayed. Thus the region > code is meaningless for obeying various local censorship laws. Speaking for Tom, I think he didn't miss the point. MPAA testified eloquently to their business model of staged releases and how they depended on access control to be able to enforce it--they failed to mention censorship or copyright infringement in the same breath. (But you are also right about the distinction between region coding and censorship.) I don't want to libel the MPAA, but a reasonable person could infer that they treat the copyright law as just another way to see a return on their campaign contributions and preserve their future income stream. One of the hazards of giving power to such extragovernmental global business oligopolies is that like Murdoch did with broadcasting to China they will make decisions on what viewers hear based upon money and not a pursuit of the truth. Of course, the First Amendment preserves us only from *government* abuse, right? From dvd-discuss-owner@eon.law.harvard.edu Sun Aug 27 23:39:02 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA31589 for dvd-discuss-outgoing; Sun, 27 Aug 2000 23:39:02 -0400 Received: from tneu.visi.com (tneu.visi.com [209.98.6.48]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id XAA31586 for ; Sun, 27 Aug 2000 23:39:01 -0400 Received: from tneu.visi.com (tneu.visi.com [163.228.19.198]) by tneu.visi.com (Postfix) with ESMTP id 4FCBB4F4 for ; Sun, 27 Aug 2000 21:58:47 -0500 (CDT) Date: Sun, 27 Aug 2000 21:58:47 -0500 (CDT) From: tim To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] DeCSS song In-Reply-To: <39A987B5.A6C98440@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 Sun, 27 Aug 2000, Moshe Vainer wrote: > Just saw this great story on linuxtoday: > http://linuxtoday.com/news_story.php3?ltsn=2000-08-27-007-20-OS-CY > > A guy wrote a song singing the entire DeCSS code. > > This makes another argument in Code vs Speech Now, if this singer (Joe Wecker) memorizes his lyrics, is his brain a circuvention device? (as the MPAA would put it, he is singing the keys to the castle!) If you point a finger at his head, is that "linking"? The song is really not as horrible as you would think it would have to be... The song itself is at http://www.linuxworld.com.au/MP3/descramble.mp3 The refrain (the stuff sung between all of the source code): I hate the DMCA, which makes this song illegal. -- =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- What the president of the Motion Picture Association of America says about taking away your constitutional rights: "I'm rather jubilant now. What Judge Kaplan did was blow away every one of these brittle and fragile rebuttals. He threw out fair use; he threw out reverse engineering; he threw out linking." - Jack Valenti, president of the Motion Picture Association of America. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- ______ _ __ "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, 28 Aug 2000 01:23:45 -0400 Received: from lovecraft.uchicago.edu (sytobinh@lovecraft.uchicago.edu [128.135.12.34]) by midway.uchicago.edu (8.10.1/8.10.1) with ESMTP id e7S5O7306870 for ; Mon, 28 Aug 2000 00:24:07 -0500 (CDT) Received: from localhost (sytobinh@localhost) by lovecraft.uchicago.edu (8.10.1/8.10.1) with ESMTP id e7S5O7v03976 for ; Mon, 28 Aug 2000 00:24:07 -0500 (CDT) X-Authentication-Warning: lovecraft.uchicago.edu: sytobinh owned process doing -bs Date: Mon, 28 Aug 2000 00:24:07 -0500 (CDT) From: sam th To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] List of Referenced Cases Message-ID: MIME-Version: 1.0 Content-Type: MULTIPART/MIXED; BOUNDARY="-559023410-851401618-967440247=:3921" Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu This message is in MIME format. The first part should be readable text, while the remaining parts are likely unreadable without MIME-aware tools. Send mail to mime@docserver.cac.washington.edu for more info. ---559023410-851401618-967440247=:3921 Content-Type: TEXT/PLAIN; charset=US-ASCII Attached to this message (I don't currently have a web site) is a list of every case and journal article referenced in all the motions and decisions, except the actual decision. (Note correspondence between this and the EFF archive). Some of these are totally useless (like the cases about executive depositions), but most bear at least passing relevance. I figure we should try to use Wendy's CGI script to reference them to findlaw/jurisline, and attach summaries/commentary (as Bryan has done for some) to them. This is a project both ideally suited for large groups (like us) and the Web. 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ZywgOCBGb3JkaGFtIEkuIFAuLCBNZWRpYSAmIEVudC4NCiAgIEwuSi4gNDg3 ICgxOTk4KV0NCg== ---559023410-851401618-967440247=:3921-- From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 28 01:39:18 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id BAA00758 for dvd-discuss-outgoing; Mon, 28 Aug 2000 01:39:18 -0400 Received: from dial68.roadrunner.com (sf-du68.cybermesa.com [209.12.75.68]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id BAA00755 for ; Mon, 28 Aug 2000 01:39:15 -0400 Received: (from paul@localhost) by dial68.roadrunner.com (8.8.7/8.8.7) id XAA01238 for dvd-discuss@eon.law.harvard.edu; Sun, 27 Aug 2000 23:41:10 -0600 Date: Sun, 27 Aug 2000 23:41:09 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] DVD CCA Opposition to Pavlovich Quash Motion Message-ID: <20000827234109.B952@localhost> References: <200008272358.TAA20573@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: <200008272358.TAA20573@soggy-fibers.ai.mit.edu>; from rst@ai.mit.edu on Sun, Aug 27, 2000 at 07:58:59PM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sun, Aug 27, 2000 at 07:58:59PM -0400, Robert S. Thau wrote: [ ... ] > In short, if you read the "access control" right as being specific to > a particular work (being infringed only when access is granted to an > unauthorized *person*), then the "control past copyright expiration" > case boils down to the fair use case --- it's just another form of > legitimate use of a work which an access control might prevent. There is also the bit about "protected under this title". Just a clarification of the naming scheme: A. Non-infringing uses: 1. Non-copyright uses: a. The work is in the public domain. All uses of the work are trivially non-infringing. b. The work is copyrighted. Uses of these works that are not listed as exclusive rights in section 106 are outside the scope of the Copyright Act. 2. Copyright uses: a. _Un_authorized use of a copyright work that satisfies the fair use exemptions in sections 107 -> 121. The use must be an exlcusive right listed in section 106, otherwise it is categorized under (A)(1) above (pre-DMCA). b. Authorized use of a copyrighted work. The use must be an exclusive right listed in section 106. The copyright owner has no statutory basis (pre-DMCA) to authorize non-exclusive rights. There is a pre-DMCA book about this sort of classification that I found to be helpful: Seltzer, "Exemptions and Fair Use in Copyright" (1978). KF 3020 S44 Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 28 01:43:46 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id BAA00841 for dvd-discuss-outgoing; Mon, 28 Aug 2000 01:43:46 -0400 Received: from dial68.roadrunner.com (sf-du68.cybermesa.com [209.12.75.68]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id BAA00838 for ; Mon, 28 Aug 2000 01:43:43 -0400 Received: (from paul@localhost) by dial68.roadrunner.com (8.8.7/8.8.7) id XAA01271 for dvd-discuss@eon.law.harvard.edu; Sun, 27 Aug 2000 23:45:39 -0600 Date: Sun, 27 Aug 2000 23:45:38 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] DVD CCA Opposition to Pavlovich Quash Motion Message-ID: <20000827234538.C952@localhost> References: <200008272358.TAA20573@soggy-fibers.ai.mit.edu> <20000827234109.B952@localhost> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <20000827234109.B952@localhost>; from fenimore@roadrunner.com on Sun, Aug 27, 2000 at 11:41:09PM -0600 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sun, Aug 27, 2000 at 11:41:09PM -0600, Paul Fenimore wrote: > A. Non-infringing uses: > 1. Non-copyright uses: > a. The work is in the public domain. All uses of the work are > trivially non-infringing. > b. The work is copyrighted. Uses of these works that are not > listed as exclusive rights in section 106 are outside the > scope of the Copyright Act. > 2. Copyright uses: > a. _Un_authorized use of a copyright work that satisfies the > fair use exemptions in sections 107 -> 121. The use must be > an exlcusive right listed in section 106, otherwise it > is categorized under (A)(1) above (pre-DMCA). > b. Authorized use of a copyrighted work. The use must be an > exclusive right listed in section 106. The copyright owner > has no statutory basis (pre-DMCA) to authorize non-exclusive > rights. B. Infringing uses: 1. Copyright uses: a. _Un_authorized use of a copyrighted work that fails the fair use exemptions in sections 107 -> 121. From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 28 02:00:07 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id CAA00909 for dvd-discuss-outgoing; Mon, 28 Aug 2000 02:00:07 -0400 Received: from mail.virtualrecordings.com ([209.0.104.81]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id CAA00906 for ; Mon, 28 Aug 2000 02:00:06 -0400 Received: from eff.org [209.0.105.216] by mail.virtualrecordings.com with ESMTP (SMTPD32-6.00) id AF798C69015C; Sun, 27 Aug 2000 22:58:17 -0700 Message-ID: <39A9FF08.F434F2C2@eff.org> Date: Sun, 27 Aug 2000 22:56:25 -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: [dvd-discuss] EFF Update: LiVid Leader Challenges California's Jurisdiction Over Him Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu EFF DVD Update: California DeCSS Trade Secret Litigation -- 08-28-00 LiVid Leader Challenges California's Jurisdiction Over Him This Tuesday, August 29th at 9:00 a.m., Judge William Elfving will hear oral argument over LiVid Project leader Matthew Pavlovich's motion to quash the California court's jurisdiction over him because he lives in Texas and has no contacts with California. DVD-CCA obtained a preliminary injunction when it filed a lawsuit in California state court against hundreds of individuals all over the world for publishing DeCSS software. DVD-CCA claims that anyone who posts the code is guilty of trade secret misappropriation and asked the California court to assert dominion over any foreigner who publishes the software. The preliminary injunction obtained earlier this year against Andrew Bunner and other named defendants is currently on appeal to California's Sixth District. Defense attorney Allonn Levy of Huber Samuelson will make a special appearance Tuesday morning on behalf of Pavlovich to challenge the California court's jurisdiction over the Texan. A ruling by the judge on the jurisdictional question is expected at the hearing, which is open to the public. Matthew Pavlovich's Motion to Quash for lack of jurisdiction: http://www.eff.org/pub/Intellectual_property/Video/DVDCCA_case/20000802_pavlovich_quash_motion.html DVD-CCA's Opposition to Pavlovich's Motion: http://cryptome.org/dvd-v-521-opq.htm More info on DVD-CCA v. Matthew Pavlovich: Santa Clara County Superior Court Public Hearing: Dept. 2, 9:00 a.m. Tuesday 8/29/00 http://www.sccsuperiorcourt.org/ Main Court House - Civil Division 191 North First Street, San Jose, CA Directions: http://www.sccsuperiorcourt.org/maps_instructs/instr1st.html EFF Archive for DVD-CCA Cal. trade secret case: http://www.eff.org/IP/Video/DVDCCA_case/ EFF's DVD Archive: http://www.eff.org/pub/Intellectual_property/DVD/ Join EFF's mailing list for the latest news by receiving the regular DVD updates directly in your inbox. To subscribe, email majordomo@eff.org and put this in the text: subscribe cafe-news Hollywood says if you support open source, you're .... http://slashdot.org/yro/00/08/26/0330249.shtml From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 28 02:02:01 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id CAA01038 for dvd-discuss-outgoing; Mon, 28 Aug 2000 02:02:01 -0400 Received: from dial162.roadrunner.com (sf-du162.cybermesa.com [209.12.75.162]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id CAA01033 for ; Mon, 28 Aug 2000 02:01:58 -0400 Received: (from paul@localhost) by dial162.roadrunner.com (8.8.7/8.8.7) id AAA01424 for dvd-discuss@eon.law.harvard.edu; Mon, 28 Aug 2000 00:03:54 -0600 Date: Mon, 28 Aug 2000 00:03:53 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] DVD CCA Opposition to Pavlovich Quash Motion Message-ID: <20000828000353.D952@localhost> References: <20000827231229.C11216@eldritchpress.org> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <20000827231229.C11216@eldritchpress.org>; from eldred@eldritchpress.org on Sun, Aug 27, 2000 at 11:12:30PM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sun, Aug 27, 2000 at 11:12:30PM -0400, Eric Eldred wrote: [ ... ] > hear based upon money and not a pursuit of the truth. Of course, the First > Amendment preserves us only from *government* abuse, right? And delegation of censorship powers to private parties by the government. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 28 04:07:02 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id EAA01483 for dvd-discuss-outgoing; Mon, 28 Aug 2000 04:07:02 -0400 Received: from mail.lemuria.org (lemuria.borgfelde.ricardo.de [195.244.103.65]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id EAA01479 for ; Mon, 28 Aug 2000 04:06:56 -0400 Received: from lemuria.org by mail.lemuria.org via rsmtp with bsmtp id for ; Mon, 28 Aug 2000 10:02:27 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Received: by lemuria.org via sendmail with stdio id for dvd-discuss@eon.law.harvard.edu; Mon, 28 Aug 2000 09:47:31 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Date: Mon, 28 Aug 2000 09:47:31 +0200 From: Tom Vogt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] DVD CCA Opposition to Pavlovich Quash Motion Message-ID: <20000828094731.A9297@lemuria.org> References: Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0pre3i In-Reply-To: X-Privacy: If you can, please encrypt your mails - finger for key Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu "Harold Eaton" wrote: > I think you're missing the point. The MPAA representative indicated > region coding allowed them to obey censorship laws of foreign countries. > If the PRC forbids the importation of the movie "The Last Emperor", > then I imagine it is illegal to import that movie into China > regardless of what region the disc may be encoded for, and regardless > of how prominently the region code is displayed. Thus the region > code is meaningless for obeying various local censorship laws. that's what I'm saying - their "point" is a blatant lie. if importing porn to some arab countries is a death-sentence criminal act, then I very, very seriously doubt that "but it's region 1, it can't be played on our players (unless you press button 1, 2 and 5 together or whatever other simple mechanism of circumvention exists)" will save your hide. the "local censorship laws" argument is a strawman, and there are many more believeable reasons for the scheme. -- "The net treats censorship as a malfunction and re-routes around it." (John Gilmore) From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 28 04:34:29 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id EAA01617 for dvd-discuss-outgoing; Mon, 28 Aug 2000 04:34:29 -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 EAA01614 for ; Mon, 28 Aug 2000 04:34:25 -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 EAA26882 for ; Mon, 28 Aug 2000 04:34:47 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id EAA22167; Mon, 28 Aug 2000 04:34:47 -0400 (EDT) Date: Mon, 28 Aug 2000 04:34:47 -0400 (EDT) Message-Id: <200008280834.EAA22167@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] DVD CCA Opposition to Pavlovich Quash Motion In-Reply-To: <20000827231229.C11216@eldritchpress.org> References: <20000827231229.C11216@eldritchpress.org> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Eric Eldred writes: > Speaking for Tom, I think he didn't miss the point. MPAA testified > eloquently to their business model of staged releases and how they > depended on access control to be able to enforce it--they failed to > mention censorship or copyright infringement in the same breath. Huh? Unless I've lost track, the quote that started this subthread was about censorship and nothing else: PAGE 262 1 MR. MARKS: Another reason why we need 2 regional coding, why we do regional coding is that 3 the law in various territories is different with 4 regard to censorship requirements. So we cannot 5 simply distribute the same work throughout the world 6 in the same version. Local laws impose censorship 7 regulations on us that require us to both exhibit 8 and distribute versions of the films that comply 9 with those censorship requirements. Marks also refers repeatedly to copyright infringement elsewhere, of course. rst From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 28 04:44:21 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id EAA02044 for dvd-discuss-outgoing; Mon, 28 Aug 2000 04:44:21 -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 EAA02041 for ; Mon, 28 Aug 2000 04:44:11 -0400 Received: (from paul@localhost) by dial92.roadrunner.com (8.8.7/8.8.7) id CAA02091 for dvd-discuss@eon.law.harvard.edu; Mon, 28 Aug 2000 02:46:06 -0600 Date: Mon, 28 Aug 2000 02:46:05 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] DVD-CCA v. McLaughlin, Plaintiff Oppostion: Intro and "Facts" Message-ID: <20000828024604.A1994@localhost> Mime-Version: 1.0 Content-Type: text/plain; charset=iso-8859-1 Content-Transfer-Encoding: 8bit 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 are some comments on the Intro and Statement of "Facts" for the DVD-CCA v. McLaughlin Plaintiff Opposition to Pavlovich Quash Motion: Defendants who misappropriate valuable trade secrets and inflict injury on major interests in this State cannot be immunized simply by conducting their illegal activities from afar over the Internet. If a state cannot redress injuries directed at that state through web site activity, then the power of the Internet will become a dangerous resource for intellectual property thieves. Right at the start, they attempt to turn this into a pre-trial hearing. This is a dispute about whether a California forum is appropriate, not a dispute about the existence of an appropriate forum. It is fair and it is the law that defendants who deliberately chose to injure interests in California be required to answer for their actions in California. "Deliberate[] ch[oice]" is not stipulated, not in supported. OK, so a guess at P's strategy #1 in the hearing is: the P's will distract from the issues at hand. Instead of discussing *which* forum is appropriate, they will attempt to convince the judge that the special appearance is an attempt to foreclose process and deny the existence of an appropriate forum. Or turn the special appearance into a pre-trial hearing/circus. Further, as Pavlovich himself highlights, many of those with whom Pavlovich acted in concert were physically located in a variety of "[I]n concert" has not been stipulated. far-flung locales including Norway, England, New York, Connecticut and elsewhere. See Defendant's Points and Authorities in Support of the Motion ("Pavlovich PA") at p. 9. According to defendant Pavlovich's argument, therefore, plaintiff DVD CCA must pursue its claims simultaneously in literally dozens of jurisdictions throughout the nation and the world. This would waste judicial resources, needlessly inconvenience witnesses, Waste judicial resources? Provide a citation to legal authority. The real issue is *justice* and fairness. If one tossed these two out on their ear, even more judicial resources could be saved. You need to demonstrate that your proclaimed miserly inclinations will not lead to an injustice. How will witnesses be inconvenienced? By having to travel from Norway to California? You're the P's remember? This sort of burden is on _you_. and risk the promulgation of inconsistent results. This fails to address the specific point that California is a UCC state. It fails to acknowledge that Norway and England are foreign nations. Well established principles of law make clear that such situations should be avoided. Even at the cost of fairness, justice and precedent? As stated in Pavlovich's own memorandum of points and authorities, avoiding a "multiplicity of suits and conflicting adjudications" is one of the key factors favoring exercise of jurisdiction. Pavlovich PA, p. 9.1 Strategy #2, "We didn't say the special appearance is an attempt to foreclose process. It is an attempt to unduly burden the P's." STATEMENT OF FACTS DVD CCA is the sole authorized licensor of Content Scramble Systems ("CSS") technology, the encryption/decryption technology used to protect the copyrighted motion pictures contained on DVD discs. Defendant Pavlovich and the other defendants developed and/or posted on the Internet a computer program called DeCSS, which misappropriates Last I knew, people, not computer programs, were the ones who "misappropriate[d]" trade secrets. DVD CCA's proprietary trade secrets and is designed to defeat the CSS encryption technology. "[D]efeat the CSS encryption technology," has not been stipulated. Specifically, defendant Pavlovich, by his own admission, founded and operated a web site located at the URL: "livid.on.openprojects.net. "2 A key purpose of this web site was to aid in the development of an unlicensed, "open source" system for DVD (*) "Unlicensed" is false. It is GPL. Guess the P's are having a hard time with the difference between copyright and trade secret. You know, publication, trade secret, they're all the same to the DVD-CCA and MPAA. playback and copying. (*) "Copying" is not stipulated; as a factual matter any player must of necessity allow access to a work. Do the plaintiffs deny that the players which they license allow access? Because they allow access, they permit copying. Are P's contending that granting access to a work would not allow one to progress to a substantial similarity test in an infringement action? (This line of argument may allow a line of attack in the 2nd circuit appeal to get the access/copying issue re-examined.) LiVid is dedicated to the idea that all computer source code should be "open," even if that means stealing and disseminating protected intellectual property. (*) Not in evidence, unsupported, not stipulated. This is simply a lie, and it depends on the lie above that LiViD is "unlicensed". Time to show the judge the GPL. The copyright owners claim the right to license their exclusive rights in LiViD. They choose the GPL as their license. The P's have now, under the guise of presenting "facts", tried to change this into a pre-trial hearing, instead of a special appearance. Bait and switch. Are the plaintiffs aware that their web site, www.dvdcca.org is hosted using the Apache web server? Do they know that they, or their agent, are bound by the terms of the GPL if they distribute or modify the program? Do they deny that they or their agent is bound by the terms of the GPL under these conditions? What other contracts licensing intellectual property have the DVD-CCA entered into, which they now assert are invalid? To that end, Pavlovich posted the DeCSS program on this web site, thereby misappropriating DVD CCA's trade secrets. Not in evidence, unsupported, not stipulated. Is this a pre-trial hearing, or a special appearance? Defendant Pavlovich misappropriated DVD CCA's trade secrets knowing that such actions would adversely impact an array of substantial California business enterprises including the motion picture industry, How did this turn into a pre-trial hearing? the consumer electronics industry, and the computer industry. Such conduct has in fact injured the motion picture industry in California by making available material that allows copying of copyrighted motion pictures. Further, as alleged in the Complaint filed in this action, And the relevance to jurisdiction is what exactly? such conduct threatens the economic welfare of the more than 400 CSS licensees - companies that make the hardware and software enabling Lawful publication threatens the cartel the 400 licensees have joined in an effort to insulate themselves from the free market. Now, if you don't mind, can we stop pretending this is a pre-trial hearing, and get back to the issue at hand? No, no, this is a special appearance. consumers to view digital images on DVDs. Of the 73 licensees which are located in California, 42 are located in Santa Clara County and an additional 17 are in other Bay Area locations. See Complaint, ¶ 53, attached as Exhibit D to the Shapiro Decl. (*) So, that's more than 327 licensees outside California. Are most of them in, say Japan? Perhaps this trial should be held in Japan. Further, defendant Pavlovich has willingly involved himself in "[D]efendant"? This is a special appearance, remember? Universal Studios, Inc. v. Reimerdes, 00 Civ. 227, a case that is now pending in the United States District Court for the Southern District of New York involving issues similar to those here. Pavlovich traveled from Texas to New York to testify as a witness for the defense in that case and was designated as a potential defense expert. Provide any legal citation suggesting that this is a basis for inclusion in a California lawsuit. Pavlovich is also the president of a technology start-up company (Pavlovich Aug. Depo., p. 8), a former computer engineering student, and a technician in the computer and telecommunications industry.3 He is one of dozens of defendants located throughout the world who have participated in the misappropriation of DVD CCA's intellectual property. Not in evidence, unsupported, not stipulated. Is this a pre-trial hearing, or a special appearance? Although plaintiffs investigation is ongoing, defendants have already been located in California, New Jersey, Wisconsin, New York, Pennsylvania, Georgia, Minnesota, South Carolina, Kansas, Texas, Connecticut, Massachusetts, Maryland, Oklahoma, Norway, Australia, Scotland, Germany, and the Netherlands. Shapiro Decl., 16. Relevance to this special appearance? Are you suggesting that the National Laws of Australia, Scotland, Germany and the Netherlands should be ignored? Perhaps the DVD-CCA should be sued in Europe for violations _in California_ of the EU prohibition of denial of RE. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 28 04:55:15 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id EAA02124 for dvd-discuss-outgoing; Mon, 28 Aug 2000 04:55:15 -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 EAA02121 for ; Mon, 28 Aug 2000 04:55:14 -0400 Received: from sites.inka.de (puric.inka.de [212.227.14.17]) by mail.inka.de with esmtp id 13TKhc-0001zb-00; Mon, 28 Aug 2000 10:55:36 +0200 Received: from localhost by sites.inka.de with local id 13TKhc-0004S9-00; Mon, 28 Aug 2000 10:55:36 +0200 Date: Mon, 28 Aug 2000 10:55:36 +0200 From: Sham Gardner To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] DVD-CCA v. McLaughlin, Plaintiff Oppostion: Intro and "Facts" Message-ID: <20000828105535.B15500@inka.de> References: <20000828024604.A1994@localhost> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0i In-Reply-To: <20000828024604.A1994@localhost>; from fenimore@roadrunner.com on Mon, Aug 28, 2000 at 02:46:05AM -0600 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Mon, Aug 28, 2000 at 02:46:05AM -0600, Paul Fenimore wrote: > Are the plaintiffs aware that their web site, www.dvdcca.org is hosted > using the Apache web server? Do they know that they, or their agent, are > bound by the terms of the GPL if they distribute or modify the program? Minor nit: Apache is licensed under "The Apache license", not the GPL. http://www.apache.org/LICENSE.txt Sham -- http://sites.inka.de/risctaker/DeCSS/ "The first speech censored, the first thought forbidden, the first freedom denied, chains us all irrevocably." (Jean-Luc Picard) From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 28 05:09:26 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id FAA02256 for dvd-discuss-outgoing; Mon, 28 Aug 2000 05:09:26 -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 FAA02253 for ; Mon, 28 Aug 2000 05:09:24 -0400 Received: from localhost (ssyreeni@localhost) by kruuna.Helsinki.FI (8.10.1/8.10.1) with ESMTP id e7S99jo24607 for ; Mon, 28 Aug 2000 12:09:45 +0300 (EET DST) X-Authentication-Warning: kruuna.Helsinki.FI: ssyreeni owned process doing -bs Date: Mon, 28 Aug 2000 12:09:44 +0300 (EET DST) From: Sampo A Syreeni To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] consumer fraud In-Reply-To: <39A522E6.EE58CBFC@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 Thu, 24 Aug 2000, mickeym wrote: >> You only own the media. The IP on those DVDs belongs to the copyright >> holders, who haven't authorized you to access it by anything other than a >> licensed DVD player. So if you play it on a non-licensed player, you are >> engaging in an act of copyright violation -- a criminal act. To prevent this >> horrible possibility, it's necessary that only licensed players be allowed to >> reach the public. > > But why isn't this a problem with my vhs movies? Oh but it is, it is. Cause you see we have this thing called Analog Copy Protection, mandated by the DMCA... :( Sampo Syreeni , aka decoy, student/math/Helsinki university From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 28 05:21:09 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id FAA02429 for dvd-discuss-outgoing; Mon, 28 Aug 2000 05:21:09 -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 FAA02426 for ; Mon, 28 Aug 2000 05:20:58 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id FAA11546 for dvd-discuss@eon.law.harvard.edu; Mon, 28 Aug 2000 05:30:37 -0400 Date: Mon, 28 Aug 2000 05:30:32 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] DVD CCA Opposition to Pavlovich Quash Motion Message-ID: <20000828053032.A11529@eldritchpress.org> References: <20000827231229.C11216@eldritchpress.org> <200008280834.EAA22167@soggy-fibers.ai.mit.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <200008280834.EAA22167@soggy-fibers.ai.mit.edu>; from rst@ai.mit.edu on Mon, Aug 28, 2000 at 04:34:47AM -0400 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Mon, Aug 28, 2000 at 04:34:47AM -0400, Robert S. Thau wrote: > Eric Eldred writes: > > Speaking for Tom, I think he didn't miss the point. MPAA testified > > eloquently to their business model of staged releases and how they > > depended on access control to be able to enforce it--they failed to > > mention censorship or copyright infringement in the same breath. > > Huh? Unless I've lost track, the quote that started this subthread > was about censorship and nothing else: > > PAGE 262 > 1 MR. MARKS: Another reason why we need > 2 regional coding, why we do regional coding is that > 3 the law in various territories is different with > 4 regard to censorship requirements. So we cannot > 5 simply distribute the same work throughout the world > 6 in the same version. Local laws impose censorship > 7 regulations on us that require us to both exhibit > 8 and distribute versions of the films that comply > 9 with those censorship requirements. > > Marks also refers repeatedly to copyright infringement elsewhere, of > course. > > rst okay, this is quite correct. I overlooked this quote. I was looking in King's testimony for the "staged release" business model but couldn't find it--maybe another witness. In any case, Kaplan seemed to agree that preserving this model was important. And when it was brought up that time it didn't seem to have anything to do with the studios making more money because they could censor. But I did find in King's testimony another thought that I will raise in another message. From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 28 05:33:58 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id FAA02561 for dvd-discuss-outgoing; Mon, 28 Aug 2000 05:33:58 -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 FAA02558 for ; Mon, 28 Aug 2000 05:33:46 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id FAA11570 for dvd-discuss@eon.law.harvard.edu; Mon, 28 Aug 2000 05:43:25 -0400 Date: Mon, 28 Aug 2000 05:43:20 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] DeCSS and video on demand Message-ID: <20000828054320.B11529@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 King at 420 says: http://www.eff.org/IP/Video/MPAA_DVD_cases/20000719_ny_trial_transcript.html 24 Q. Do you believe any other damage will flow to Warner from 25 the DeCSS hack unless dissemination of DeCSS is enjoined? 420 1 A. Well, if the dissemination of DeCSS is not enjoined and if 2 the legislation is not upheld, then we've lost our protection 3 for products in the digital domain, not only could it have a 4 tremendously adverse effect on the sale of DVD, but Warner 5 Brothers at least is now looking into digital distribution of 6 its movie in video-on-demand avenues. They can be private 7 video on demand through a pay-per-view network like direct TV 8 or it could be through the Internet. 9 But the only way I think that we would be willing to 10 go ahead is if we had some type of protection for our product. 11 Additionally, even if we had protection on video on demand, if 12 there still was a hack like this of DVD, it could cut the 13 window and cut off our future revenue from that new product 14 stream. So, our TV revenues as well as our video revenues 15 would be impacted greatly. What is the relation between DeCSS (or CSS) and video on demand (not DVD)? What does DMCA provide that regular copyright law does not, in protecting video on demand? Does "protection" here mean complete use control as well as access control and copy control? What are the implications of extending the DVD-CCA/MPAA monopoly on DVD players to widespread distribution of other digital formats on the Internet? What would be the "authority model" for such use? Is King saying that if the DMCA is upheld here, studios would be able to go forward to impose controls on other devices such as digital TVs or other appliances, without further authority? Does Kaplan's decision grant what King seeks here? -- "Eric" Eric Eldred Eldritch Press mailto:Eldred@EldritchPress.org http://www.eldritchpress.org/EricEldred.vcf From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 28 05:52:05 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id FAA02692 for dvd-discuss-outgoing; Mon, 28 Aug 2000 05:52:05 -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 FAA02689 for ; Mon, 28 Aug 2000 05:52:03 -0400 Received: from localhost (ssyreeni@localhost) by kruuna.Helsinki.FI (8.10.1/8.10.1) with ESMTP id e7S9qP102151 for ; Mon, 28 Aug 2000 12:52:25 +0300 (EET DST) X-Authentication-Warning: kruuna.Helsinki.FI: ssyreeni owned process doing -bs Date: Mon, 28 Aug 2000 12:52:24 +0300 (EET DST) From: Sampo A Syreeni To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] The US v O'Brien standard In-Reply-To: <20000826015150.8514.qmail@web509.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, 25 Aug 2000, Bryan Taylor wrote: >In O'Brien, it was clear: burning your draft card is conduct. There's >no analog here. What exactly is the conduct in offering to the public a >computer program? Considering the roots of the 'speech' protected by the 1st Amendment, where's the speech here? Expansive interpretations of course cover computer programs and I agree with Tourezky, but considering this from the perspective of ideological and political speach, the act of making available an executable takes a very small role. >(3) if the governmental interest is unrelated to the suppression of >free expression >(4) if the incidental restriction on alleged First Amendment freedoms >is no greater than is essential to the furtherance of that interest. > >The worst failure is (4) since all of the Constitutionally mandated >fair use of encrypted works is sacrificed at the alter of the DMCA. Especially since we already have copyright infringement to protect the 'substantial governmentalal interest' here. In fact, it probably cannot be proven that encryption technology helps protect the copyright at all - where's the interest, then? Sampo Syreeni , aka decoy, student/math/Helsinki university From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 28 05:59:27 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id FAA02985 for dvd-discuss-outgoing; Mon, 28 Aug 2000 05:59:27 -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 FAA02982 for ; Mon, 28 Aug 2000 05:59:15 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id GAA11589 for dvd-discuss@eon.law.harvard.edu; Mon, 28 Aug 2000 06:08:55 -0400 Date: Mon, 28 Aug 2000 06:08:49 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] DVD-CCA v. McLaughlin, Plaintiff Oppostion: Intro and "Facts" Message-ID: <20000828060849.C11529@eldritchpress.org> References: <20000828024604.A1994@localhost> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <20000828024604.A1994@localhost>; from fenimore@roadrunner.com on Mon, Aug 28, 2000 at 02:46:05AM -0600 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I think Robin's posting of the EFF response goes to show that Matt's lawyers understand the issues quite well. On Mon, Aug 28, 2000 at 02:46:05AM -0600, Paul Fenimore wrote: > Here are some comments on the Intro and Statement of "Facts" for the > DVD-CCA v. McLaughlin Plaintiff Opposition to Pavlovich Quash Motion: > > Defendants who misappropriate valuable trade secrets and inflict > injury on major interests in this State cannot be immunized simply by > conducting their illegal activities from afar over the Internet. If a > state cannot redress injuries directed at that state through web site > activity, then the power of the Internet will become a dangerous > resource for intellectual property thieves. In particular, these claims obscure the point that the LiViD web site is purely a "passive" site. The site (much less Matt) cannot "inflict injury" or "conduct illegal activities from afar" or constitute "web site activity." It is purely a passive site. It conducts no business in California or addresses information to California residents any more than any other person who clicks on the site and reads the pages. (The situation here is even more favorable for us than the one Ron Gustavson raised, with a porn web site or BBS actually doing interstate business. Matt doesn't conduct business over this web site.) (But, of course, if the California judge likes Kaplan's idea about linking, then all bets are off--as well as any predictions as to what will happen with e-commerce.) > Right at the start, they attempt to turn this into a pre-trial hearing. > This is a dispute about whether a California forum is appropriate, not > a dispute about the existence of an appropriate forum. Yes, I thought their introduction of the claim that Matt used "reverse engineering" and that he knew this was "illegal" was particularly brazen. The EFF site contains an extract from the Uniform Trade Secrets Act (which CA signed) that proves that reverse engineering alone CANNOT be evidence for "improper means" in relation to trade secrets. It is specifically excluded. Then we go to try to figure out why DVD-CCA claims that reverse engineering is "illegal." Not the UTSA, not the DMCA (yet), not the law in Norway for sure (the EFF site has a great brief on Norwegian law). It seems the DVD-CCA is shooting itself in the foot here. They hope to get Matt on the chair and then turn to examining the validity of their clickon license. But the license cannot overrule the UTSA. >> ... [more bluster deleted here] I am wondering if it might not be opportune to counterattack with a suit in Texas? Is Texas a UTSA state? They are on weak ground. If it goes to trial and has a different result from NY, then it would be easier to get a Supreme Court hearing because of the difference between circuits. But of course if one is shopping for a good place to airlift people in this case, why not choose a better one than Texas in August? We can take the judge along too! Just set up a "seminar" paid by an independent "foundation" that funnels money. See: http://www.nytimes.com/yr/mo/day/oped/28mikv.html -- "Eric" Eric Eldred Eldritch Press mailto:Eldred@EldritchPress.org http://www.eldritchpress.org/EricEldred.vcf From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 28 06:22:52 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id GAA03129 for dvd-discuss-outgoing; Mon, 28 Aug 2000 06:22:52 -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 GAA03126 for ; Mon, 28 Aug 2000 06:22:50 -0400 Received: from localhost (ssyreeni@localhost) by kruuna.Helsinki.FI (8.10.1/8.10.1) with ESMTP id e7SAMpL07627 for ; Mon, 28 Aug 2000 13:22:52 +0300 (EET DST) X-Authentication-Warning: kruuna.Helsinki.FI: ssyreeni owned process doing -bs Date: Mon, 28 Aug 2000 13:22:51 +0300 (EET DST) From: Sampo A Syreeni To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] [off-topic] Charter? 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, 26 Aug 2000, Joshua Stratton wrote: >Well, IIRC the last _successful_ attempt was made in New York around 1900 >or so. There's a group that's been trying to get one of the cigarette >companies dechartered, but obviously no luck just yet. Could somebody explain what charters are and what it precisely means to get a company dechartered? Sampo Syreeni , aka decoy, student/math/Helsinki university From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 28 06:33:58 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id GAA03265 for dvd-discuss-outgoing; Mon, 28 Aug 2000 06:33:58 -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 GAA03262 for ; Mon, 28 Aug 2000 06:33:56 -0400 Received: from localhost (ssyreeni@localhost) by kruuna.Helsinki.FI (8.10.1/8.10.1) with ESMTP id e7SAYIB09501 for ; Mon, 28 Aug 2000 13:34:18 +0300 (EET DST) X-Authentication-Warning: kruuna.Helsinki.FI: ssyreeni owned process doing -bs Date: Mon, 28 Aug 2000 13:34:17 +0300 (EET DST) From: Sampo A Syreeni To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Open Source Vs. MPAA In-Reply-To: <20000826101306.A2166@lemuria.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, 26 Aug 2000, Tom Vogt wrote: >that decss is doing COMMERCIAL harm to them? No that's probably precisely why we are dealing with the MPAA...no...no...the MPAA member companies which authorized the MPAA to work on behalf of them... ;) Sampo Syreeni , aka decoy, student/math/Helsinki university From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 28 07:28:20 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id HAA03492 for dvd-discuss-outgoing; Mon, 28 Aug 2000 07:28:20 -0400 Received: from mail.world-net.co.nz (mail.world-net.co.nz [203.96.119.27]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id HAA03489 for ; Mon, 28 Aug 2000 07:28:18 -0400 Received: from leopard.lan (nw3-48.world-net.co.nz [202.37.68.48]) by mail.world-net.co.nz (8.9.3/8.9.3) with SMTP id XAA24193 for ; Mon, 28 Aug 2000 23:25:33 +1200 From: Daniel Richards To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] MPA stopping paralell importing in NZ Date: Mon, 28 Aug 2000 23:20:13 +1200 X-Mailer: KMail [version 1.0.29.2] Content-Type: text/plain MIME-Version: 1.0 Message-Id: <00082823262303.13842@leopard.lan> Content-Transfer-Encoding: 8bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu -----BEGIN PGP SIGNED MESSAGE----- Hash: SHA1 It looks like the MPA (the international versiion of the MPAA) is unhappy that video/DVD stores are importing DVD's that havn't screened in NZ cinema's yet. It's really kinda stupid, since the reason they are doing this is because of zombie^H^H^H^H^H^Hconsumer demand. All this means if they do get the government to change the law (ala DMCA) is that the video stores will lose out, and people will order the DVD's over the net. URL is http://onenews.nzoom.com/national/2000/08/28/00032690.htm Of course, I still keep hearing players that follow region coding (I think we're region 4) are illegal, but I havn't seen any legislation to back this up. (Im guessing it has to do with fraud and the consumers gaurentee's act/Fair trading act) - -- "Your future has arrived, are you ready to go?" -----BEGIN PGP SIGNATURE----- Version: GnuPG v1.0.1 (GNU/Linux) Comment: For info see http://www.gnupg.org iD8DBQE5qkxnHxSqGAiQwxwRAux5AKDT4802UZ/y8W9EyepZN8MoDgZrUwCePF5/ gZOOKKpaQLDrLc3yE9Z9vd0= =cyZa -----END PGP SIGNATURE----- From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 28 08:02:33 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id IAA03670 for dvd-discuss-outgoing; Mon, 28 Aug 2000 08:02:33 -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 IAA03667 for ; Mon, 28 Aug 2000 08:02:31 -0400 Received: from localhost (ssyreeni@localhost) by kruuna.Helsinki.FI (8.10.1/8.10.1) with ESMTP id e7SC2rP24345 for ; Mon, 28 Aug 2000 15:02:53 +0300 (EET DST) X-Authentication-Warning: kruuna.Helsinki.FI: ssyreeni owned process doing -bs Date: Mon, 28 Aug 2000 15:02:52 +0300 (EET DST) From: Sampo A Syreeni To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] (fwd) ALERT: FCC considers restricting digital In-Reply-To: <39A9223A.BA457FE0@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 Sun, 27 Aug 2000, mickeym wrote: >content" by "Encrypted transfer, decrypt only if receiving device is >certified to handle content in a secure manner." > >I think that it is absurd to force a PC to meet this description. Well... If you can build a mechanism into the processor hardware (Intel) to provide a trusted execution environment for a compliant operating system (Microsoft) which then guarantees that programs accessing secured content cannot, for instance, write to disk while having access, it's not just absurd, it's absurdly effective. All this is easily backed up by dense enough crypto. (on-CPU firmware running in a trusted execution mode which maintains a registration of memory addresses of code allowed to access sensitive device port/memory addresses and/or PCI slot numbers; verification of registration requests in the trusted mode via a manufacturer signature backed by public key certificates from the copyprotection authority; authenticated updates to the on-chip firmware to revoke authority in case of key disclosure) See, when there are powerful enough players on the field, anything *could* conceivably happen. Sampo Syreeni , aka decoy, student/math/Helsinki university From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 28 08:16:39 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id IAA03806 for dvd-discuss-outgoing; Mon, 28 Aug 2000 08:16:39 -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 IAA03803 for ; Mon, 28 Aug 2000 08:16:38 -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 IAA06490 for ; Mon, 28 Aug 2000 08:17:01 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id IAA22545; Mon, 28 Aug 2000 08:17:00 -0400 (EDT) Date: Mon, 28 Aug 2000 08:17:00 -0400 (EDT) Message-Id: <200008281217.IAA22545@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] DVD CCA Opposition to Pavlovich Quash Motion In-Reply-To: <20000827230336.B11216@eldritchpress.org> References: <200008272358.TAA20573@soggy-fibers.ai.mit.edu> <20000827230336.B11216@eldritchpress.org> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Eric Eldred writes: > "Access control" is still a "function" that > is granted to the DVD-CCA here to control, not the copyright > holder. (I still think this is worth a test, just to find out.) > It is definitely a new right, one that is not covered > by traditional copyright law, and the fact that access and > copying are two different functions in the law implies that > they come with separate authorizations. And Kaplan says > neither comes with first sale. It's one thing to argue that the access control right no longer applies after sale under the first sale doctrine. It's quite another to argue that the grant of the access control right itself is somehow illegitimate. The one doesn't get you the other. (N.B. loss of rights at first sale is quite enough to make DeCSS legitimate --- see the Thau/Taylor LOC comment. But it wouldn't get the law itself thrown out, which is something you seem to insist on). > > Another, of course, is that in the former case, DeCSS is plainly > > legal, since it never grants access in a case where a licensed CSS > > implementation would not (taking the plaintiffs' experts at their word > > that region coding and the like are mechanisms which are *separate* > > from CSS, and that region coding restrictions are not imposed by CSS > > itself). > > Not really, if one goes on to consider various possible scenarios. > Suppose that Barnes & Noble issues an encrypted eBook in Microsoft > Reader format. Let's say it is Kafka's "Metamorphosis and Other > Stories." It is not possible from the description or publication > data to determine if the book deserves a new copyright, or if it is > in the public domain. First off, this hypothetical situation has no obvious connection at all to CSS or DeCSS. It concerns completely different technology. I have *no* idea what TPMs are incorporated in Microsoft eBook reader, or whether any of them would qualify as access controls under my interpretation of the law. If the only controls present are of the same form as CSS (all content "encrypted" with a single key, embedded in all readers), they would not qualify as access controls, and would be fair game for legitimate reimplementation, without any associated use controls (barring patents on some of the features, which are a separate issue). But without much more information than you have supplied, it's impossible to make any informed judgment. It's for reasons like this that, when a judge is presented with an argument which involves a detailed hypothetical scenario like this, it is often entirely proper for the judge to say "I'll decide that case when I see it in front of me, and *all the relevant facts are in evidence*, not just the ones you have chosen." Particularly so when you're asking the judge to apply a balancing test, and the facts of the situation could seriously change the balance. rst From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 28 08:47:27 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id IAA03922 for dvd-discuss-outgoing; Mon, 28 Aug 2000 08:47:27 -0400 Received: from world.std.com (root@world-f.std.com [199.172.62.5]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id IAA03919 for ; Mon, 28 Aug 2000 08:47:26 -0400 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 IAA06858 for ; Mon, 28 Aug 2000 08:45:48 -0400 (EDT) Mime-Version: 1.0 Message-Id: In-Reply-To: <8oc4rk$g3$1@blowfish.isaac.cs.berkeley.edu> References: <20000827043440.23166.qmail@web510.mail.yahoo.com> <8oc4rk$g3$1@blowfish.isaac.cs.berkeley.edu> Date: Mon, 28 Aug 2000 08:45:37 -0400 To: dvd-discuss@eon.law.harvard.edu From: "Arnold G. Reinhold" Subject: Re: [dvd-discuss] Encryption Research (Was Re: 40-bit encryption) 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 [Earlier this month, I took a stab at a 1201g defense brief, which I never posted. Here it is for what it's worth. --agr] At the June 27 hearing, Judge Kaplan asked: "Are [the defendants] entitled to the benefits of the encryption research exception to DMCA?" We claim they are. 1201g(1)(A) says "the term 'encryption research' means activities necessary to identify and analyze flaws and vulnerabilities of encryption technologies applied to copyrighted works, if these activities are conducted to advance the state of knowledge in the field of encryption technology or to assist in the development of encryption products" DeCSS certainly identifies a vulnerability of an encryption technology, CSS, applied to copyrighted works, DVDs. It also advances the state of knowledge in the field of encryption technology. DeCSS will undoubtedly have a major effect on strengthening the design of future content protection encryption products. In plaintiffs' opening statement, Mr. Gold states: "Plaintiffs would not have issued DVD's without a protective encryption system" [Trial transcript, p. 9, l. 1] Plaintiffs now know what they apparently did not know before: their encryption system was so weak it could be broken by a 15 year old boy. Plaintiffs argue that DeCSS did not involve breaking codes but was just reverse engineering. But reverse engineering is a valid aspect of encryption research. The law that protects America's cryptographic secrets, 18 USC 798 defines in (b): "The term 'communication intelligence' means all procedures and methods used in the interception of communications and the obtaining of information from such communications by other than the intended recipients;" Had Mr. Johansen's activities been carried in secret out on behalf of the National Security Agency, revealing those activities would have been a criminal offence under 798. If one rejects Mr. Johansen's efforts as encryption research, then the defendant in publishing the DeCSS story was presenting his original encryption research. The defendant is, after all, a journalist who in the past has covered computer security stories (Trial transcript, p. 797, ll. 4-18) and DeCSS is a story that clearly has an encryption angle. Another way to assess whether DeCSS advanced the state of knowledge is to ask who might gain from knowing of it. Potential beneficiaries of DeCSS knowledge include: o Movie content owners who have not yet committed their content to DVD release, and who now have a more realistic understanding of CSS's ability to protect their economic interests. o The stock and bond markets, who can now better evaluate the long term profit potential of public companies that own or distribute movie content. o. Home entertainment equipment manufacturers, who's engineering departments will know to design better protection in next generation content distribution schemes. o Designers of other security systems who will be chastened by the CSS experience and will be able to cite it as an example to their managements in order to obtain the necessary backing to do things properly. Inclusion of the actual DeCSS software in defendant's report is also appropriate. It is reasonable to suppose that the above potential beneficiaries of DeCSS knowledge were more likely to be influenced by an actual demonstration of CSS's vulnerability, than a mere report of the same. 1201g (3) states: "Factors in determining exemption. - In determining whether a person qualifies for the exemption under paragraph (2), the factors to be considered shall include - (A) whether the information derived from the encryption research was disseminated, and if so, whether it was disseminated in a manner reasonably calculated to advance the state of knowledge or development of encryption technology, versus whether it was disseminated in a manner that facilitates infringement under this title or a violation of applicable law other than this section, including a violation of privacy or breach of security; (B) whether the person is engaged in a legitimate course of study, is employed, or is appropriately trained or experienced, in the field of encryption technology; and (C) whether the person provides the copyright owner of the work to which the technological measure is applied with notice of the findings and documentation of the research, and the time when such notice is provided. " Re subsection (A): DeCSS was disseminated via the Internet. DeCSS included full source code, thereby advancing the state of knowledge. No one alleges that privacy rights were infringed. No one alleges that secure computer systems were breached. No one alleges that pirated works were distributed by the defendant. No one alleges that DeCSS' authors attempted to profit from their work. The plaintiffs stipulate that they have no evidence that any infringement was facilitated. Note that defendant's sole activity with regard to DeCSS was in dissemination, an activity Congress implicitly endorses in this subsection. Re subsection (B): The notion that Congress' may set criteria as to who is and who is not an acceptable person to perform research raises grave constitutional questions. Nonetheless, it should be noted that the author of DeCSS. Jon Johansen, was a 15 year student in high school in Norway [Trial transcript, p. 616. l. 19] at the time he created DeCSS. Re subsection (C): Since DeCSS was published on the Internet, the plaintiffs received the same notice as everyone else. The prompt timing of defendants report on DeCSS affords copyright holders an opportunity to fully consider the risks of CSS technology before releasing new works on DVD. That must be good enough. The notion that a journalist can be required to give advance notice of publication to a subject of his story raises grave issues regarding the freedom of the press. "Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity." Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1963); Arnold Reinhold From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 28 08:52:28 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id IAA04053 for dvd-discuss-outgoing; Mon, 28 Aug 2000 08:52:28 -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 IAA04050 for ; Mon, 28 Aug 2000 08:52:26 -0400 Received: from travel-net.com (trj95.travel-net.com [207.176.160.95]) by mail.travel-net.com (8.9.3/8.9.3) with ESMTP id IAA16616 for ; Mon, 28 Aug 2000 08:52:59 -0400 Message-ID: <39AA6073.9B2EFBAA@travel-net.com> Date: Mon, 28 Aug 2000 08:52:03 -0400 From: Dan Steinberg 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] [off-topic] Charter? References: 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 FYI is a legal document granting someone (or someones) the authority to perform business activities somewhere. The earliest charters I can think of were Royal charters, which were granted for the exploitation of North America and other territories. Think of it as the equivalent of incorporation, licence to do business and grant of exclusive territory all wrapped up in one document. A great time-saver for a .com start-up don't you think? The Hudson's Bay Company comes to mind. Originally granted for the fur trade, the"Bay" has grown up be a holding company for several department store chains and other interests globally. I am not an expert on the history of business law but I believe chartering predates incorporation as a form. OTher examples of royal charter include the British North Borneo Company, British South Africa Company. One aspect of a charter that was useful at the time was the ability to do many different things under the same business umbrella. It was a very flexible instrument for the time, when if you wanted to operate a sweet shop you could be in biiiiiiig trouble for selling horsehoes as well. In other words a charter is one of the many forms that permits an entity to do business {incorporation (inc), doing business as (dba), registered (reg), limited company (ltd), partnership, societé anonyme (SA), etc.} And if an organization is decharted it simply loses the authority to operate. Consider it like the revocation of a business licence or permit to exist. I hope this information (providing I havent made any glaring errors) is sufficient to close this thread? Sampo A Syreeni wrote: > On Sat, 26 Aug 2000, Joshua Stratton wrote: > > >Well, IIRC the last _successful_ attempt was made in New York around 1900 > >or so. There's a group that's been trying to get one of the cigarette > >companies dechartered, but obviously no luck just yet. > > Could somebody explain what charters are and what it precisely means to get > a company dechartered? > > Sampo Syreeni , aka decoy, student/math/Helsinki university From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 28 08:58:23 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id IAA04247 for dvd-discuss-outgoing; Mon, 28 Aug 2000 08:58:23 -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 IAA04244 for ; Mon, 28 Aug 2000 08:58:22 -0400 Received: from travel-net.com (trj95.travel-net.com [207.176.160.95]) by mail.travel-net.com (8.9.3/8.9.3) with ESMTP id IAA17009 for ; Mon, 28 Aug 2000 08:58:47 -0400 Message-ID: <39AA61CE.49277094@travel-net.com> Date: Mon, 28 Aug 2000 08:57:50 -0400 From: Dan Steinberg 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] (fwd) ALERT: FCC considers restricting digital 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 All this is technically feasible, but hopefully the gods of backwards-compatibility will grant them the wisdom to see that this business model would be asking for trouble in the form of a giant nosedive in their share price. Sampo A Syreeni wrote: > On Sun, 27 Aug 2000, mickeym wrote: > > >content" by "Encrypted transfer, decrypt only if receiving device is > >certified to handle content in a secure manner." > > > >I think that it is absurd to force a PC to meet this description. > > Well... If you can build a mechanism into the processor hardware (Intel) to > provide a trusted execution environment for a compliant operating system > (Microsoft) which then guarantees that programs accessing secured content > cannot, for instance, write to disk while having access, it's not just > absurd, it's absurdly effective. All this is easily backed up by dense > enough crypto. (on-CPU firmware running in a trusted execution mode which > maintains a registration of memory addresses of code allowed to access > sensitive device port/memory addresses and/or PCI slot numbers; verification > of registration requests in the trusted mode via a manufacturer signature > backed by public key certificates from the copyprotection > authority; authenticated updates to the on-chip firmware to revoke authority > in case of key disclosure) > > See, when there are powerful enough players on the field, anything *could* > conceivably happen. > > Sampo Syreeni , aka decoy, student/math/Helsinki university From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 28 10:07:05 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA04594 for dvd-discuss-outgoing; Mon, 28 Aug 2000 10:07:05 -0400 Received: from mail.paladin-press.com (usw-dsl-94.47.denco.rmi.net [166.93.94.47]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id KAA04591 for ; Mon, 28 Aug 2000 10:07:03 -0400 Received: from [192.6.172.240] by mail.paladin-press.com (NTMail 5.06.0014/SQ1032.00.0fc41e75) with ESMTP id fmrbaaaa for dvd-discuss@eon.law.harvard.edu; Mon, 28 Aug 2000 08:12:02 -0600 X-Sender: jonf@192.6.172.2 Message-Id: In-Reply-To: <39A87D0F.57E4EF38@mediaone.net> Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" To: dvd-discuss@eon.law.harvard.edu From: "Paladin Press Editorial Dept." Subject: [dvd-discuss] re: EXPLOSIVES TITLES NO LONGER AVAILABLE Cc: sphere1952@mediaone.net Date: Mon, 28 Aug 2000 08:12:02 -0600 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Go to the U.S. Congress Web site and look up S606, "For the relief of Global Exploration and Development Corporation, Kerr-McGhee Corporation, and Kerr-McGhee Chemical, LLC (successor to Kerr-McGhee Chemical Corporation), and for other purposes." See Sec. 2, "Criminal Prohibition on the distribution of certain information relating to explosives, destructive devices, and weapons of mass destruction." >Could you send email to dvd-discuss@eon.law.harvard.edu >explaining in more detail why the current legal climate >"induced" you to suspend the sale of certain explosive >publications? > >Aside from the current DVD-CCA problem, at the rate >things are going I might want to know such stuff >before too long. > > >-- >Sphere. > >Is DeCSS.c obscene? Why can't I read it? > Can knowledge be forbidden? From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 28 10:36:22 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA04938 for dvd-discuss-outgoing; Mon, 28 Aug 2000 10:36:22 -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 KAA04934 for ; Mon, 28 Aug 2000 10:36:21 -0400 Received: from ip12.bedford9.ma.pub-ip.psi.net ([38.32.79.12]) by relay20.smtp.psi.net with smtp (Exim 3.13 #3) id 13TQ1g-0003pi-00 for dvd-discuss@eon.law.harvard.edu; Mon, 28 Aug 2000 10:36:40 -0400 From: Ron Gustavson To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] (fwd) ALERT: FCC considers restricting digital Date: Mon, 28 Aug 2000 10:38:44 -0400 Message-ID: References: <39AA61CE.49277094@travel-net.com> In-Reply-To: <39AA61CE.49277094@travel-net.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 KAA04935 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Mon, 28 Aug 2000 08:57:50 -0400, Dan Steinberg wrote: >All this is technically feasible, but hopefully the gods of >backwards-compatibility will grant them the wisdom to see that this business >model would be asking for trouble in the form of a giant nosedive in their share >price. Because it's aimed at cable/satellite tv, PC compatibility doesn't concern them. For now, they want to prevent PC compatibility (cutting out PC capture cards like ATI's on the digital broadcasts, which are usually scrambled anyway.) No one will complain because the lions share of broadcasts will be still be analog for a time. Then they cut deals (already happened) with RePlay and TiVo to make sure that _they_ don't allow analog or digital output. Once DTCP is part of the PC framework, they push new PPV-ready capture devices. __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 28 11:31:44 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA07740 for dvd-discuss-outgoing; Mon, 28 Aug 2000 11:31:44 -0400 Received: from smtp03.primenet.com (smtp03.primenet.com [206.165.6.133]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id LAA07737 for ; Mon, 28 Aug 2000 11:31:37 -0400 Received: (from daemon@localhost) by smtp03.primenet.com (8.9.3/8.9.3) id IAA14740 for ; Mon, 28 Aug 2000 08:30:50 -0700 (MST) Received: from sessions.phx.primenet.com(206.132.239.114), claiming to be "heorot.lumbercartel.com" via SMTP by smtp03.primenet.com, id smtpdAAA9Ma4LC; Mon Aug 28 08:30:36 2000 Received: from frankenstein.lumbercartel.com (IDENT:dcs@frankenstein.lumbercartel.com [192.168.6.2]) by heorot.lumbercartel.com (8.9.3/8.8.7) with SMTP id IAA02604 for ; Mon, 28 Aug 2000 08:31:34 -0700 From: "D. C. Sessions" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Encryption Research (Was Re: 40-bit encryption) Date: Sun, 27 Aug 2000 22:04:08 -0700 X-Mailer: KMail [version 1.0.29] Content-Type: text/plain References: <20000827043440.23166.qmail@web510.mail.yahoo.com> <200008272307.TAA30651@granger.mail.mindspring.net> In-Reply-To: <200008272307.TAA30651@granger.mail.mindspring.net> MIME-Version: 1.0 Message-Id: <00082722045800.00942@frankenstein.lumbercartel.com> Content-Transfer-Encoding: 8bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sun, 27 Aug 2000, John Young wrote: > David Wagner wrote: > > >Reporting on others' research results is not itself research. And, just > >because one's actions have the effect of advancing the state of knowledge > >in some scientific field, does not mean that one has engaged in research. > > > >We might like an exemption for reporting the results of other people's > >encryption research. Such an exemption might be good law or good policy. > >It might be required by the First Amendment. But it's not in the DMCA, > >as far as I can see. > > This is a very interesting point. Would you claim that researchers must > publish their own research material in order to share it with other > researchers? That is, where collaborative research is being done, > as is often the case in cryptology -- your own work an example -- > must the researchers rely only on their own means of communication? If this is the legal definition of 'research' then Stephen Hawking isn't a 'researcher' -- a very interesting definition indeed. -- | Engineers solve problems -- it's what we do. | | Do you want to be a problem? | | D. C. Sessions === dcs@lumbercartel.com | From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 28 11:32:27 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA07748 for dvd-discuss-outgoing; Mon, 28 Aug 2000 11:32:27 -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 LAA07745 for ; Mon, 28 Aug 2000 11:32:26 -0400 Received: from ip12.bedford9.ma.pub-ip.psi.net ([38.32.79.12]) by relay21.smtp.psi.net with smtp (Exim 3.13 #3) id 13TQu0-0002QG-00 for dvd-discuss@eon.law.harvard.edu; Mon, 28 Aug 2000 11:32:49 -0400 From: Ron Gustavson To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] MPA stopping paralell importing in NZ Date: Mon, 28 Aug 2000 11:34:52 -0400 Message-ID: <371lqssse19nth5n3qd5hqdr6f60vlh9id@4ax.com> References: <00082823262303.13842@leopard.lan> In-Reply-To: <00082823262303.13842@leopard.lan> 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 LAA07746 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Mon, 28 Aug 2000 23:20:13 +1200, Daniel Richards wrote: >It looks like the MPA (the international versiion of the MPAA) is unhappy that >video/DVD stores are importing DVD's that havn't screened in NZ cinema's yet. >It's really kinda stupid, since the reason they are doing this is because of >zombie^H^H^H^H^H^Hconsumer demand. All this means if they do get the government >to change the law (ala DMCA) is that the video stores will lose out, and people >will order the DVD's over the net. >URL is http://onenews.nzoom.com/national/2000/08/28/00032690.htm >Of course, I still keep hearing players that follow region coding (I think >we're region 4) are illegal, but I havn't seen any legislation to back this up. >(Im guessing it has to do with fraud and the consumers gaurentee's act/Fair >trading act) The big secret is that there are only two regions. (and China, which has about 40-50 manufacturers ready to produce region-free or switchable players.) But someone in, say, New Zealand might as well wait for another comet to hit Jupiter than for a current Hollywood movie to arrive on his shores in DVD. Perhaps there should be an injunction limiting Hollywood hype to appropriate regions? __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 28 11:46:53 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA07928 for dvd-discuss-outgoing; Mon, 28 Aug 2000 11:46:53 -0400 Received: from mail.lemuria.org (lemuria.borgfelde.ricardo.de [195.244.103.65]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id LAA07925 for ; Mon, 28 Aug 2000 11:46:51 -0400 Received: from lemuria.org by mail.lemuria.org via rsmtp with bsmtp id for ; Mon, 28 Aug 2000 17:36:42 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Received: by lemuria.org via sendmail with stdio id for dvd-discuss@eon.law.harvard.edu; Mon, 28 Aug 2000 16:05:59 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Date: Mon, 28 Aug 2000 16:05:59 +0200 From: Tom Vogt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] DVD CCA Opposition to Pavlovich Quash Motion Message-ID: <20000828160559.A10244@lemuria.org> References: <20000827231229.C11216@eldritchpress.org> <200008280834.EAA22167@soggy-fibers.ai.mit.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0pre3i In-Reply-To: <200008280834.EAA22167@soggy-fibers.ai.mit.edu> X-Privacy: If you can, please encrypt your mails - finger for key Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu "Robert S. Thau" wrote: > Huh? Unless I've lost track, the quote that started this subthread > was about censorship and nothing else: yes - and the argument is that this is a strawman. thrown in by the MPAA to move attention to piracy, censorship, whatever - just not the issues of market control, price fixing and customer bullshitting. -- "The net treats censorship as a malfunction and re-routes around it." (John Gilmore) From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 28 12:00:33 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA08043 for dvd-discuss-outgoing; Mon, 28 Aug 2000 12:00:33 -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 MAA08040 for ; Mon, 28 Aug 2000 12:00:32 -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 MAA00609 for ; Mon, 28 Aug 2000 12:00:55 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id MAA24400; Mon, 28 Aug 2000 12:00:55 -0400 (EDT) Date: Mon, 28 Aug 2000 12:00:55 -0400 (EDT) Message-Id: <200008281600.MAA24400@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] (fwd) ALERT: FCC considers restricting digital In-Reply-To: References: <39AA61CE.49277094@travel-net.com> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Ron Gustavson writes: > Because it's aimed at cable/satellite tv, PC compatibility doesn't > concern them. For now, they want to prevent PC compatibility > (cutting out PC capture cards like ATI's on the digital broadcasts, > which are usually scrambled anyway.) No one will complain because > the lions share of broadcasts will be still be analog for a time. > > Then they cut deals (already happened) with RePlay and TiVo to make > sure that _they_ don't allow analog or digital output. > > Once DTCP is part of the PC framework, they push new PPV-ready > capture devices. Which would be interesting, since PC-video capture cards are *specifically* cited (by Ashcroft) in the legislative history as a legitimate device that would *not* be banned under the DMCA. The "infinite copies of our digital source data" argument clearly does not apply in the video capture case because the output of such a card is digital, and indefinitely copyable with full fidelity (assuming sufficient bandwidth --- but they'll fudge that as usual), regardless of the input format. rst From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 28 12:04:24 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA08138 for dvd-discuss-outgoing; Mon, 28 Aug 2000 12:04:24 -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 MAA08135 for ; Mon, 28 Aug 2000 12:04:21 -0400 Message-ID: <20000828160413.5738.qmail@web511.mail.yahoo.com> Received: from [131.44.121.4] by web511.mail.yahoo.com; Mon, 28 Aug 2000 09:04:13 PDT Date: Mon, 28 Aug 2000 09:04:13 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] Encryption Research (Was Re: 40-bit encryption) To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --- "David A. Wagner" wrote: > Bryan Taylor wrote: > > --- Ravi Nanavati wrote: > > > The obstacles I see: > > > > > > 1) Corley's testimony that he wasn't engaged in encryption > > > research. > > > > He was asked to make a conclusion of law, and to the extend that he > > made one favorable to the plaintiffs is a tribute to their > > propaganda's persuasiveness, but not to their correctness. > > I haven't read what he said, but what he obviously meant was > > that he didn't do "original" encryption research that was > > scientifically novel. > > Are you suggesting that the `encryption research' exemption in the > DMCA was intended to cover more than just original research? > Do you have any evidence for this? Everything I've seen would > indicate that it was intended to cover novel, scientific research. Yes. The evidence is the lack of the word "original" or any similar qualifier modifying 'encryption research'. The standard in the law is "advance the state of knowledge", which can certainly be done by describing existing technology in a way that makes it more accessible / comprehensible to any particular audience. Would you suggest that a survey article is not covered? What good is research anyway if it is somehow 'tainted' so that it can't be discussed? My other arguement is that the jurisprudence interpreting O'Brien makes it clear that a restriction to novel research only would be content-based. The first amendment does not create castes who are the exclusive speakers of certain ideas. The novelty criterion considered here is a very abusive attempt to constraint the flow of ideas using copyright, which has always forsaken control over the flow of ideas. I would argue that a "novelty" requirement is forbidden by both the copyright power and the First Amendment. > Reporting on others' research results is not itself research. It might not get you a PhD, but it certainly is research. Certainly many people have written a master's thesis this way. In mathematics, it is almost unheard of to do anything novel before your dissertation. > And, just because one's actions have the effect of advancing the > state of knowledge in some scientific field, does not mean that > one has engaged in research. I disagree, but I also note that "advance the state of knowledge" is the test used by the law, so even if you believe this, you would pass 1201(g) muster. > We might like an exemption for reporting the results of other > people's encryption research. Such an exemption might be good law > or good policy. It might be required by the First Amendment. But > it's not in the DMCA, as far as I can see. I can square my interpretation with the statute. It may or may not be what Congress intended, but as you note, what Congress intended may be null and void. This IS an overbreadth argument, so please take a stand on your second to last sentence. __________________________________________________ Do You Yahoo!? Yahoo! Mail - Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 28 12:12:41 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA08281 for dvd-discuss-outgoing; Mon, 28 Aug 2000 12:12:41 -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 MAA08278 for ; Mon, 28 Aug 2000 12:12:39 -0400 Message-ID: <20000828161232.18604.qmail@web514.mail.yahoo.com> Received: from [131.44.121.4] by web514.mail.yahoo.com; Mon, 28 Aug 2000 09:12:32 PDT Date: Mon, 28 Aug 2000 09:12:32 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] Encryption Research (Was Re: 40-bit encryption) To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > If this is not the case then Cryptome with a lot of other Net sites > are are going down the tubes, or rather underground. Although > a bunker might be a pretty swell place to do what can't be done > openly under DMCA if it is the copyright industry's nuclear option. I, for one, can state unambigously, that my personal state of knowledge regarding encryption has been advanced by the activities published by Cryptome. I also don't recall seeing anything there that I though was invented by John Young personally. Are we really at the point where what others have said before constrains the ideas that you are allowed to express? The patent system is the only one that provides any protection for novel ideas, and even then it only protects against their USE. The disclosure requirement with a patent assures that the idea can always be discussed. It is also critical for determining whether or not a given idea is protected. __________________________________________________ Do You Yahoo!? Yahoo! Mail - Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 28 12:14:04 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA08363 for dvd-discuss-outgoing; Mon, 28 Aug 2000 12:14:04 -0400 Received: from smtp05.primenet.com (smtp05.primenet.com [206.165.6.135]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id MAA08357 for ; Mon, 28 Aug 2000 12:14:02 -0400 Received: (from daemon@localhost) by smtp05.primenet.com (8.9.3/8.9.3) id JAA20500 for ; Mon, 28 Aug 2000 09:14:27 -0700 (MST) Received: from sessions.phx.primenet.com(206.132.239.114), claiming to be "heorot.lumbercartel.com" via SMTP by smtp05.primenet.com, id smtpdAAAeWai7N; Mon Aug 28 09:14:18 2000 Received: from frankenstein.lumbercartel.com (IDENT:dcs@frankenstein.lumbercartel.com [192.168.6.2]) by heorot.lumbercartel.com (8.9.3/8.8.7) with SMTP id JAA02906 for ; Mon, 28 Aug 2000 09:13:47 -0700 From: "D. C. Sessions" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] (fwd) ALERT: FCC considers restricting digital Date: Mon, 28 Aug 2000 09:02:36 -0700 X-Mailer: KMail [version 1.0.29] Content-Type: text/plain References: <39AA61CE.49277094@travel-net.com> In-Reply-To: <39AA61CE.49277094@travel-net.com> MIME-Version: 1.0 Message-Id: <00082809134500.01422@frankenstein.lumbercartel.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, 28 Aug 2000, Dan Steinberg wrote: > All this is technically feasible, but hopefully the gods of > backwards-compatibility will grant them the wisdom to see that this business > model would be asking for trouble in the form of a giant nosedive in their share > price. Actually, all of the intermediate steps are just housekeeping. The key part is that Intel and the content shops are proposing to build secure display hardware (wonder where the push for digital displays comes from?) which will do the decryption based on hardware keys in the display (or codec) itself. The rest is just a way for the source(s) to negotiate challenge/response with the display. All of the intermediate steps just pass along that dialog. Now one might ask how they deal with the massive backward-compatibility problems. Good question. This sounds like DivX (Circuit City) all over again, with Hollywood demanding a bulletproof hardware solution and then backing off when the market research discovers that there's a tradeoff between security and convenience. With all of those dumb displays out there, it seems unlikely that Hollywood, Inc. will choose to serve only the newest bleeding-edge secure hardware, and without an assurance of exclusive content no display maker is about to spend $$$ and headaches on building secure displays. About the only way I can see the new "Secure Display Initiative" working is if Microsoft keeps enough market power to twist hardware arms, as in "Our 2004 OS version will ONLY support secure display technology. As of that date, backward compatibility to CRTs and dumb LCDs will be terminated." This *might* scare the HW shops enough to start shipping cryptodisplays, but probably only in about 2003 because for older systems breaking backward compatibility actually makes them money. Look at the success that Intel and MS have had in getting rid of ISA and PCI (esp. 5v PCI) and it seems that even now they don't have that kind of power. -- | Engineers solve problems -- it's what we do. | | Do you want to be a problem? | | D. C. Sessions === dcs@lumbercartel.com | From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 28 12:39:13 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA08636 for dvd-discuss-outgoing; Mon, 28 Aug 2000 12:39:13 -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 MAA08633 for ; Mon, 28 Aug 2000 12:39:12 -0400 Received: from ip12.bedford9.ma.pub-ip.psi.net ([38.32.79.12]) by relay21.smtp.psi.net with smtp (Exim 3.13 #3) id 13TRwc-00049P-00 for dvd-discuss@eon.law.harvard.edu; Mon, 28 Aug 2000 12:39:35 -0400 From: Ron Gustavson To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] (fwd) ALERT: FCC considers restricting digital Date: Mon, 28 Aug 2000 12:41:39 -0400 Message-ID: <7s4lqs04v6cc7htlu0bvrl5668rrdj3k4j@4ax.com> References: <39AA61CE.49277094@travel-net.com> <200008281600.MAA24400@soggy-fibers.ai.mit.edu> In-Reply-To: <200008281600.MAA24400@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 MAA08634 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Mon, 28 Aug 2000 12:00:55 -0400 (EDT), Robert S. Thau wrote: > > Then they cut deals (already happened) with RePlay and TiVo to make > > sure that _they_ don't allow analog or digital output. Just to clarify, I don't know of any actual deals, just wide industry support split between these two companies. Also, without going out and buying one, I don't know if the existing RePlay box does or doesn't allow output to a VCR. Does anyone know? I'm assuming that future DVRs will have Macrovision if these ones don't now. > > Once DTCP is part of the PC framework, they push new PPV-ready > > capture devices. > >Which would be interesting, since PC-video capture cards are >*specifically* cited (by Ashcroft) in the legislative history as a >legitimate device that would *not* be banned under the DMCA. The >"infinite copies of our digital source data" argument clearly does not >apply in the video capture case because the output of such a card is >digital, and indefinitely copyable with full fidelity (assuming >sufficient bandwidth --- but they'll fudge that as usual), regardless >of the input format. Regarding Commissioner Ness' warning of the impending threat of digital redistribution, what gives? (say I) Is it that most TV just isn't worth webcasting? Or, are the honest people keeping themselves honest in advance of the necessary technology? __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 28 12:40:49 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA08710 for dvd-discuss-outgoing; Mon, 28 Aug 2000 12:40:49 -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 MAA08706 for ; Mon, 28 Aug 2000 12:40:48 -0400 Received: from mit.edu (h0050da62b39d.ne.mediaone.net [24.147.217.121]) by chmls06.mediaone.net (8.8.7/8.8.7) with ESMTP id MAA11957; Mon, 28 Aug 2000 12:41:10 -0400 (EDT) Message-ID: <39AA96A6.EB2EE452@mit.edu> Date: Mon, 28 Aug 2000 12:43:18 -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] (fwd) ALERT: FCC considers restricting digital References: <39AA61CE.49277094@travel-net.com> <00082809134500.01422@frankenstein.lumbercartel.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 "D. C. Sessions" wrote: > About the only way I can see the new "Secure Display Initiative" working is if > Microsoft keeps enough market power to twist hardware arms, as in "Our > 2004 OS version will ONLY support secure display technology. As of that > date, backward compatibility to CRTs and dumb LCDs will be terminated." > This *might* scare the HW shops enough to start shipping cryptodisplays, > but probably only in about 2003 because for older systems breaking backward > compatibility actually makes them money. Look at the success that Intel and > MS have had in getting rid of ISA and PCI (esp. 5v PCI) and it seems that > even now they don't have that kind of power. > No. The way the "Secure Display Initiative" succeeds is the way DVDs succeeded: bait and switch. Let people think they're buying an unrestricted display (the way people thought they were buying unrestricted pieces of plastic), then pull the rug out from under them. People are starting to move to digital displays and HDTVs now. All that needs to be ensured is that digital displays shipped today (or at least the ones shipping in the near future) are firmware-"upgradeable" to secure displays when the time is right. This is biggest long-term danger we face: the content cartels are quickly learning how to route around the consumer's better instincts. - Ravi Nanavati From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 28 12:46:23 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA08817 for dvd-discuss-outgoing; Mon, 28 Aug 2000 12:46:23 -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 MAA08814 for ; Mon, 28 Aug 2000 12:46:22 -0400 Message-ID: <20000828164614.21037.qmail@web509.mail.yahoo.com> Received: from [131.44.121.4] by web509.mail.yahoo.com; Mon, 28 Aug 2000 09:46:14 PDT Date: Mon, 28 Aug 2000 09:46:14 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] Code and assassins To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --- Jolley wrote: > On page 3. > K>Computer code is expressive. To that extent, it is a matter of > K>First Amendment concern. But computer code is not purely > K>expressive any more than the assassination of a political > K>figure is purely a political statement. Code causes computers to > K>perform desired functions. > > CODE causes computers to perform desired functions? I thought PEOPLE > caused computers to perform desired functions! At the very least > it is people, through the use of code, cause computers to perform > desired functions. It is absurd to say that code 'causes' computers to perform desired functions. The fact that someone can build a machine that can implement a method described precisely does not gut the description of that method from it's status as pure speech. As the 9th Circuit noted in Bernstein: computers will soon be able to parse human speech and execute commands accordingly. Will this fact bring all of human speech under the intermediate scrutiny test? > K>Its expressive element no more immunizes its functional > K>aspects from regulation than the expressive motives of an assassin > K>immunize the assassin's action. Kaplan would therefore ban firearms training manuals. Would it be a crime to point out that if the president's convertilbe motorcade proceeds as planned down the parade route that he will be vulnerable to an assassin located in the book repository? > K>In an era in which the transmission of computer viruses--which, > K>like DeCSS, are simply computer code and thus to some degree > K>expressive--can disable systems upon which the nation depends and > K>in which other computer code also is capable of inflicting other > K>harm, society must be able to regulate the use and dissemination > K>of code in appropriate circumstances. So would Kaplan suggest that it be illegal to email an infected file to someone with a truthful description of the virus? This is, after all, a critical path activity leading to the development of defenses to viruses are created. Kaplan's infection analogy is a similarity therefore equivalence fallacy. Could it be that interesting speech and ideas also spread expontentially since it is untrammeled by the burden of physical existence. As for "sucide pacts", the Constitution is not, but Kaplan's interpretation of it is. __________________________________________________ Do You Yahoo!? Yahoo! Mail - Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 28 12:48:28 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA08863 for dvd-discuss-outgoing; Mon, 28 Aug 2000 12:48:28 -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 MAA08860 for ; Mon, 28 Aug 2000 12:48:27 -0400 Received: from uic.edu (dial0-404.dialin.uic.edu [128.248.172.221]) by eeyore.cc.uic.edu (8.9.3/8.9.3) with ESMTP id LAA25410 for ; Mon, 28 Aug 2000 11:48:49 -0500 (CDT) Message-ID: <39AA9682.15B7C510@uic.edu> Date: Mon, 28 Aug 2000 11:42:43 -0500 From: John Schulien X-Mailer: Mozilla 4.6 [en] (Win95; I) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Hollywood -- the nightmare factory Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > That is what made America great, not Hollywood, Sir. > And it's that spirit, the freedom the Constitution > is supposed to protect, those real dreams, not > movie fantasies, that your ruling puts into > danger. Much of the goodwill towards the movie industry is based on the notion that Hollywood is "where dreams come from." These cases are quickly turning Hollywood into the place "where nightmares come from", which can only erode popular support for the movie industry. From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 28 13:05:24 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA09010 for dvd-discuss-outgoing; Mon, 28 Aug 2000 13:05:24 -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 NAA09007 for ; Mon, 28 Aug 2000 13:05:19 -0400 Received: by aero.org id <17303-2>; Mon, 28 Aug 2000 10:05:24 -0700 Received: from mhultra.aero.org(130.221.88.102) via SMTP by aero.org, id smtpdQNAa23314; Mon Aug 28 09:57:45 2000 Received: from ladir01.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Mon, 28 Aug 2000 09:43:34 -0700 Subject: Re: [dvd-discuss] (fwd) ALERT: FCC considers restricting digital To: dvd-discuss@eon.law.harvard.edu X-Mailer: Lotus Notes Release 5.0.3 March 21, 2000 Message-Id: From: Michael.A.Rolenz@aero.org X-MIMETrack: Serialize by Router on ladir01/AeroNet/Aerospace/US(Release 5.0.3 |March 21, 2000) at 08/28/2000 09:43:34 AM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Date: Mon, 28 Aug 2000 09:57:53 -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu It's frightening that these people have started to figure out that a personal computer isn't an appliance and want to turn it into one....one that they control..... "D. C. Sessions" cc: Sent by: Subject: Re: [dvd-discuss] (fwd) ALERT: FCC owner-dvd-discuss@eon.law.h considers restricting digital arvard.edu 08/28/00 09:22 AM Please respond to dvd-discuss On Mon, 28 Aug 2000, Dan Steinberg wrote: > All this is technically feasible, but hopefully the gods of > backwards-compatibility will grant them the wisdom to see that this business > model would be asking for trouble in the form of a giant nosedive in their share > price. Actually, all of the intermediate steps are just housekeeping. The key part is that Intel and the content shops are proposing to build secure display hardware (wonder where the push for digital displays comes from?) which will do the decryption based on hardware keys in the display (or codec) itself. The rest is just a way for the source(s) to negotiate challenge/response with the display. All of the intermediate steps just pass along that dialog. Now one might ask how they deal with the massive backward-compatibility problems. Good question. This sounds like DivX (Circuit City) all over again, with Hollywood demanding a bulletproof hardware solution and then backing off when the market research discovers that there's a tradeoff between security and convenience. With all of those dumb displays out there, it seems unlikely that Hollywood, Inc. will choose to serve only the newest bleeding-edge secure hardware, and without an assurance of exclusive content no display maker is about to spend $$$ and headaches on building secure displays. About the only way I can see the new "Secure Display Initiative" working is if Microsoft keeps enough market power to twist hardware arms, as in "Our 2004 OS version will ONLY support secure display technology. As of that date, backward compatibility to CRTs and dumb LCDs will be terminated." This *might* scare the HW shops enough to start shipping cryptodisplays, but probably only in about 2003 because for older systems breaking backward compatibility actually makes them money. Look at the success that Intel and MS have had in getting rid of ISA and PCI (esp. 5v PCI) and it seems that even now they don't have that kind of power. -- | Engineers solve problems -- it's what we do. | | Do you want to be a problem? | | D. C. Sessions === dcs@lumbercartel.com | From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 28 13:21:25 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA09238 for dvd-discuss-outgoing; Mon, 28 Aug 2000 13:21:25 -0400 Received: from smtp03.primenet.com (smtp03.primenet.com [206.165.6.133]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id NAA09235 for ; Mon, 28 Aug 2000 13:21:23 -0400 Received: (from daemon@localhost) by smtp03.primenet.com (8.9.3/8.9.3) id KAA27595 for ; Mon, 28 Aug 2000 10:20:38 -0700 (MST) Received: from sessions.phx.primenet.com(206.132.239.114), claiming to be "heorot.lumbercartel.com" via SMTP by smtp03.primenet.com, id smtpdAAA81aGQ1; Mon Aug 28 10:20:23 2000 Received: from frankenstein.lumbercartel.com (IDENT:dcs@frankenstein.lumbercartel.com [192.168.6.2]) by heorot.lumbercartel.com (8.9.3/8.8.7) with SMTP id KAA03090 for ; Mon, 28 Aug 2000 10:20:56 -0700 From: "D. C. Sessions" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Encryption Research (Was Re: 40-bit encryption) Date: Mon, 28 Aug 2000 10:15:01 -0700 X-Mailer: KMail [version 1.0.29] Content-Type: text/plain References: <20000828160413.5738.qmail@web511.mail.yahoo.com> In-Reply-To: <20000828160413.5738.qmail@web511.mail.yahoo.com> MIME-Version: 1.0 Message-Id: <00082810205300.01464@frankenstein.lumbercartel.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, 28 Aug 2000, Bryan Taylor wrote: > --- "David A. Wagner" wrote: > > Bryan Taylor wrote: > > > --- Ravi Nanavati wrote: > > > > The obstacles I see: > > > > > > > > 1) Corley's testimony that he wasn't engaged in encryption > > > > research. > > > > > > He was asked to make a conclusion of law, and to the extend that he > > > made one favorable to the plaintiffs is a tribute to their > > > propaganda's persuasiveness, but not to their correctness. > > > I haven't read what he said, but what he obviously meant was > > > that he didn't do "original" encryption research that was > > > scientifically novel. > > > > Are you suggesting that the `encryption research' exemption in the > > DMCA was intended to cover more than just original research? > > Do you have any evidence for this? Everything I've seen would > > indicate that it was intended to cover novel, scientific research. > My other arguement is that the jurisprudence interpreting O'Brien makes > it clear that a restriction to novel research only would be > content-based. The first amendment does not create castes who are the > exclusive speakers of certain ideas. The novelty criterion considered > here is a very abusive attempt to constraint the flow of ideas using > copyright, which has always forsaken control over the flow of ideas. I > would argue that a "novelty" requirement is forbidden by both the > copyright power and the First Amendment. Might be interesting to go along with this construction of the statute, since as I understand the case law presented here that would render the whole thing deader'n a doornail at the A1 level. > > Reporting on others' research results is not itself research. Note: you are going to get a WHOLE lot of reporters and librarians on your case with this theory, since that's exactly how they use the term. More to the point, that's exactly how LAWYERS use the term. > > And, just because one's actions have the effect of advancing the > > state of knowledge in some scientific field, does not mean that > > one has engaged in research. > > I disagree, but I also note that "advance the state of knowledge" is > the test used by the law, so even if you believe this, you would pass > 1201(g) muster. The process of scientific advancement is a community exercise. The plaintiffs and Judge Kaplan have been watching too many mad-scientist type B movies. -- | Engineers solve problems -- it's what we do. | | Do you want to be a problem? | | D. C. Sessions === dcs@lumbercartel.com | From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 28 13:27:36 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA09413 for dvd-discuss-outgoing; Mon, 28 Aug 2000 13:27:36 -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 NAA09410 for ; Mon, 28 Aug 2000 13:27:35 -0400 Received: from uic.edu (dial0-404.dialin.uic.edu [128.248.172.221]) by eeyore.cc.uic.edu (8.9.3/8.9.3) with ESMTP id MAA03921 for ; Mon, 28 Aug 2000 12:27:57 -0500 (CDT) Message-ID: <39AA9FAE.9657BBA9@uic.edu> Date: Mon, 28 Aug 2000 12:21:51 -0500 From: John Schulien X-Mailer: Mozilla 4.6 [en] (Win95; I) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] The US v O'Brien standard Content-Type: text/plain; charset=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 law prohibiting destruction of Selective Service > certificates no more abridges free speech on its face than a > motor vehicle law prohibiting the destruction of drivers' > licenses, or a tax law prohibiting the destruction of books > and records. [391 U.S. 367, 376] ... all of which are documents which functionally serve governmental purposes. Draft cards are a functional part of the selective service machinery. Drivers licenses are a functional part of the motor vehicle enforcement machinery. Books and records containing tax records are a functional part of the tax collection machinery. All of which, if destroyed will harm the ability of the government to carry out governmental functions -- the draft, motor vehicle law enforcement, tax collection. Burning a draft card is, in essence, a symbolically and functionally revolutionary act. Burning a draft card is destroying a part of the governmental machinery that enables selective service. It is tearing down the small piece of government that you are forced to carry with you. However, CSS serves no governmental function. The DVD-CCA is not a government branch. It is a private trade organization. It is completely inappropriate for Kaplan to use this limited governmental power -- created in a time of perceived national crisis to protect the machinery of government -- and therefore the national security of the country, to prop up a failed encryption system designed to control the DVD player market. From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 28 13:27:21 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA09405 for dvd-discuss-outgoing; Mon, 28 Aug 2000 13:27:21 -0400 Received: from dial233.roadrunner.com (sf-du233.cybermesa.com [209.12.75.233]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id NAA09402 for ; Mon, 28 Aug 2000 13:27:17 -0400 Received: (from paul@localhost) by dial233.roadrunner.com (8.8.7/8.8.7) id LAA00856 for dvd-discuss@eon.law.harvard.edu; Mon, 28 Aug 2000 11:29:08 -0600 Date: Mon, 28 Aug 2000 11:29:07 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] DVD-CCA v. McLaughlin, Plaintiff Oppostion: Intro and "Facts" Message-ID: <20000828112907.A714@localhost> References: <20000828024604.A1994@localhost> <20000828105535.B15500@inka.de> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <20000828105535.B15500@inka.de>; from mail@risctaker.inka.de on Mon, Aug 28, 2000 at 10:55:36AM +0200 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Mon, Aug 28, 2000 at 10:55:36AM +0200, Sham Gardner wrote: > On Mon, Aug 28, 2000 at 02:46:05AM -0600, Paul Fenimore wrote: > > Are the plaintiffs aware that their web site, www.dvdcca.org is hosted > > using the Apache web server? Do they know that they, or their agent, are > > bound by the terms of the GPL if they distribute or modify the program? > > Minor nit: Apache is licensed under "The Apache license", not the GPL. > > http://www.apache.org/LICENSE.txt Ouch. Thanks for the correction. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 28 13:31:32 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA09567 for dvd-discuss-outgoing; Mon, 28 Aug 2000 13:31:32 -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 NAA09564 for ; Mon, 28 Aug 2000 13:31:31 -0400 Received: from uic.edu (dial0-404.dialin.uic.edu [128.248.172.221]) by eeyore.cc.uic.edu (8.9.3/8.9.3) with ESMTP id MAA04814 for ; Mon, 28 Aug 2000 12:31:54 -0500 (CDT) Message-ID: <39AAA09C.7A07E459@uic.edu> Date: Mon, 28 Aug 2000 12:25:49 -0500 From: John Schulien X-Mailer: Mozilla 4.6 [en] (Win95; I) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Encryption Research Content-Type: text/plain; charset=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 sez: > There is no evidence that they made any effort to provide > the results of the DeCSS effort to the copyright owners. Note that under the CSS licensing contracts, the copyright owners are not permitted access to the CSS algorithm or keys! Is Kaplan suggesting that by publishing a CSS encoded disc, a copyright owner receives some right to the CSS algorithm? Kaplan is confusing the DVD-CCA with the copyright owners. From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 28 13:32:44 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA09612 for dvd-discuss-outgoing; Mon, 28 Aug 2000 13:32:44 -0400 Received: from dial95.roadrunner.com (sf-du95.cybermesa.com [209.12.75.95]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id NAA09609 for ; Mon, 28 Aug 2000 13:32:41 -0400 Received: (from paul@localhost) by dial95.roadrunner.com (8.8.7/8.8.7) id LAA00999 for dvd-discuss@eon.law.harvard.edu; Mon, 28 Aug 2000 11:34:33 -0600 Date: Mon, 28 Aug 2000 11:34:32 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] The US v O'Brien standard Message-ID: <20000828113431.B714@localhost> References: <20000826015150.8514.qmail@web509.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 Mon, Aug 28, 2000 at 12:52:24PM +0300 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Mon, Aug 28, 2000 at 12:52:24PM +0300, Sampo A Syreeni wrote: > On Fri, 25 Aug 2000, Bryan Taylor wrote: > > >In O'Brien, it was clear: burning your draft card is conduct. There's > >no analog here. What exactly is the conduct in offering to the public a > >computer program? > > Considering the roots of the 'speech' protected by the 1st Amendment, > where's the speech here? Expansive interpretations of course cover computer > programs and I agree with Tourezky, but considering this from the > perspective of ideological and political speach, the act of making available > an executable takes a very small role. But isn't the real problem here that whether or not something is an "executable" file is not a property of the file. Instead it is a property of the computer on which the file is run, and what _other_ files are on the computer. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 28 13:51:23 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA09694 for dvd-discuss-outgoing; Mon, 28 Aug 2000 13:51:23 -0400 Received: from smtp01.primenet.com (smtp01.primenet.com [206.165.6.131]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id NAA09691 for ; Mon, 28 Aug 2000 13:51:17 -0400 Received: (from daemon@localhost) by smtp01.primenet.com (8.9.3/8.9.3) id KAA17703 for ; Mon, 28 Aug 2000 10:51:08 -0700 (MST) Received: from sessions.phx.primenet.com(206.132.239.114), claiming to be "heorot.lumbercartel.com" via SMTP by smtp01.primenet.com, id smtpdAAA0paGzI; Mon Aug 28 10:50:56 2000 Received: from frankenstein.lumbercartel.com (IDENT:dcs@frankenstein.lumbercartel.com [192.168.6.2]) by heorot.lumbercartel.com (8.9.3/8.8.7) with SMTP id KAA03157 for ; Mon, 28 Aug 2000 10:51:22 -0700 From: "D. C. Sessions" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] (fwd) ALERT: FCC considers restricting digital Date: Mon, 28 Aug 2000 10:48:05 -0700 X-Mailer: KMail [version 1.0.29] Content-Type: text/plain References: <00082809134500.01422@frankenstein.lumbercartel.com> <39AA96A6.EB2EE452@mit.edu> In-Reply-To: <39AA96A6.EB2EE452@mit.edu> MIME-Version: 1.0 Message-Id: <00082810512100.01527@frankenstein.lumbercartel.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, 28 Aug 2000, Ravi Nanavati wrote: > "D. C. Sessions" wrote: > > About the only way I can see the new "Secure Display Initiative" working is if > > Microsoft keeps enough market power to twist hardware arms, as in "Our > > 2004 OS version will ONLY support secure display technology. As of that > > date, backward compatibility to CRTs and dumb LCDs will be terminated." > > This *might* scare the HW shops enough to start shipping cryptodisplays, > > but probably only in about 2003 because for older systems breaking backward > > compatibility actually makes them money. Look at the success that Intel and > > MS have had in getting rid of ISA and PCI (esp. 5v PCI) and it seems that > > even now they don't have that kind of power. > > > > No. The way the "Secure Display Initiative" succeeds is the way > DVDs succeeded: bait and switch. Let people think they're buying > an unrestricted display (the way people thought they were buying > unrestricted pieces of plastic), then pull the rug out from under > them. People are starting to move to digital displays and HDTVs > now. All that needs to be ensured is that digital displays shipped > today (or at least the ones shipping in the near future) are > firmware-"upgradeable" to secure displays when the time is right. > This is biggest long-term danger we face: the content cartels > are quickly learning how to route around the consumer's better > instincts. Anything that can be changed in the field is too insecure for their purposes. ESPECIALLY if the field upgrade is shipped as software. In about an hour and a half, some MoRE type will have the necessary functionality built into a display driver. Secure hardware for mass distribution needs to be REALLY bulletproof. As previously mentioned, I've worked on projects for secure hardware and even moderate security isn't easy even when you use wierd silicon tricks. -- | Engineers solve problems -- it's what we do. | | Do you want to be a problem? | | D. C. Sessions === dcs@lumbercartel.com | From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 28 13:52:10 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA09704 for dvd-discuss-outgoing; Mon, 28 Aug 2000 13:52:10 -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 NAA09701 for ; Mon, 28 Aug 2000 13:52:07 -0400 Received: (from paul@localhost) by dial166.roadrunner.com (8.8.7/8.8.7) id LAA01418 for dvd-discuss@eon.law.harvard.edu; Mon, 28 Aug 2000 11:53:58 -0600 Date: Mon, 28 Aug 2000 11:53:57 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] (fwd) ALERT: FCC considers restricting digital Message-ID: <20000828115357.C714@localhost> References: <39A9223A.BA457FE0@mindspring.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 Mon, Aug 28, 2000 at 03:02:52PM +0300 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Mon, Aug 28, 2000 at 03:02:52PM +0300, Sampo A Syreeni wrote: > On Sun, 27 Aug 2000, mickeym wrote: > > >content" by "Encrypted transfer, decrypt only if receiving device is > >certified to handle content in a secure manner." > > > >I think that it is absurd to force a PC to meet this description. > > Well... If you can build a mechanism into the processor hardware (Intel) to > provide a trusted execution environment for a compliant operating system > (Microsoft) which then guarantees that programs accessing secured content > cannot, for instance, write to disk while having access, it's not just > absurd, it's absurdly effective. All this is easily backed up by dense > enough crypto. (on-CPU firmware running in a trusted execution mode which > maintains a registration of memory addresses of code allowed to access > sensitive device port/memory addresses and/or PCI slot numbers; verification > of registration requests in the trusted mode via a manufacturer signature > backed by public key certificates from the copyprotection > authority; authenticated updates to the on-chip firmware to revoke authority > in case of key disclosure) > > See, when there are powerful enough players on the field, anything *could* > conceivably happen. Continuing the discussion: This is a massive insecurity from the stand-point of the computer's owner. The security of the computer will have been surrendered to the MPAA/RIAA/etc. "If I can't control what I own, then I own nothing at all"? Of course this is _technologically_ ineffective as far as the copyright owner's should be concerned because because people get to see or hear the work at some point. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 28 14:02:48 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA10186 for dvd-discuss-outgoing; Mon, 28 Aug 2000 14:02:48 -0400 Received: from dial141.roadrunner.com (sf-du141.cybermesa.com [209.12.75.141]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id OAA10183 for ; Mon, 28 Aug 2000 14:02:45 -0400 Received: (from paul@localhost) by dial141.roadrunner.com (8.8.7/8.8.7) id MAA01608 for dvd-discuss@eon.law.harvard.edu; Mon, 28 Aug 2000 12:04:36 -0600 Date: Mon, 28 Aug 2000 12:04:35 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] re: EXPLOSIVES TITLES NO LONGER AVAILABLE Message-ID: <20000828120434.D714@localhost> References: <39A87D0F.57E4EF38@mediaone.net> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: ; from editorial@paladin-press.com on Mon, Aug 28, 2000 at 08:12:02AM -0600 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu The enrolled version of the bill, in PDF and hopefully at a stable URL: On Mon, Aug 28, 2000 at 08:12:02AM -0600, Paladin Press Editorial Dept. wrote: > Go to the U.S. Congress Web site and look up S606, "For the relief of > Global Exploration and Development Corporation, Kerr-McGhee Corporation, > and Kerr-McGhee Chemical, LLC (successor to Kerr-McGhee Chemical > Corporation), and for other purposes." See Sec. 2, "Criminal Prohibition on > the distribution of certain information relating to explosives, destructive > devices, and weapons of mass destruction." > > > >Could you send email to dvd-discuss@eon.law.harvard.edu > >explaining in more detail why the current legal climate > >"induced" you to suspend the sale of certain explosive > >publications? > > > >Aside from the current DVD-CCA problem, at the rate > >things are going I might want to know such stuff > >before too long. > > > > > >-- > >Sphere. > > > >Is DeCSS.c obscene? Why can't I read it? > > Can knowledge be forbidden? From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 28 14:43:05 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA10634 for dvd-discuss-outgoing; Mon, 28 Aug 2000 14:43:05 -0400 Received: from mercury.clearway.com (c100.clearway.com [199.103.231.100]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id OAA10630 for ; Mon, 28 Aug 2000 14:43:04 -0400 Received: by c100.clearway.com with Internet Mail Service (5.5.2650.21) id ; Mon, 28 Aug 2000 14:46:39 -0400 Message-ID: From: Leland Ray To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] DVD CCA Opposition to Pavlovich Quash Motion Date: Mon, 28 Aug 2000 14:46:38 -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 am not completely sure here. >From a purely moral perspective, Hollywood can allow for the enforcement of censorship laws by the existence of a region code but that is different from trying to actively enforce region codes. In other words, if China, or Saudi Arabia, or whatever wants to restrict players sold in its country to be region code X and not allow in players that use other region codes, fine. But keep the MPA and the DVDCCA out of it. However, the MPA may face a more serious problem in that China (for instance) might refuse to allow any American movies in, or might refuse even a modicum of copyright enforcement, if region codes are not actively used to enforce censorship. I have not reviewed the treaties or actual practices used by these countries, but if the situation is anything like software, it is pretty complex. Most companies that sell content significantly increase the price when marketing in other countries. In software, much of the markup is from the distributors in those countries that rely on their exclusive contracts to hold virtual monopolies. I wonder if the same system also haunts movies...does anyone understand that business who can enlighten us? -----Original Message----- From: Tom Vogt [mailto:tom@lemuria.org] Sent: Monday, August 28, 2000 3:48 AM To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] DVD CCA Opposition to Pavlovich Quash Motion the "local censorship laws" argument is a strawman, and there are many more believeable reasons for the scheme. From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 28 14:54:42 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA10867 for dvd-discuss-outgoing; Mon, 28 Aug 2000 14:54:42 -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 OAA10864 for ; Mon, 28 Aug 2000 14:54:41 -0400 Received: from ip46.bedford2.ma.pub-ip.psi.net ([38.32.10.46]) by relay21.smtp.psi.net with smtp (Exim 3.13 #3) id 13TU3j-0007Tz-00 for dvd-discuss@eon.law.harvard.edu; Mon, 28 Aug 2000 14:55:03 -0400 From: Ron Gustavson To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] (fwd) ALERT: FCC considers restricting digital Date: Mon, 28 Aug 2000 14:57:05 -0400 Message-ID: References: <00082809134500.01422@frankenstein.lumbercartel.com> <39AA96A6.EB2EE452@mit.edu> <00082810512100.01527@frankenstein.lumbercartel.com> In-Reply-To: <00082810512100.01527@frankenstein.lumbercartel.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 OAA10865 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Mon, 28 Aug 2000 10:48:05 -0700, D. C. Sessions wrote: >Anything that can be changed in the field is too insecure for their purposes. >ESPECIALLY if the field upgrade is shipped as software. In about an >hour and a half, some MoRE type will have the necessary functionality >built into a display driver. > >Secure hardware for mass distribution needs to be REALLY bulletproof. >As previously mentioned, I've worked on projects for secure hardware >and even moderate security isn't easy even when you use wierd silicon >tricks. Of course, the government is in a bind. They gave away the spectrum; now they want Hi def. But nobody wants to pay for it. And DTCP on a chip will raise the price of an already $2000 set (not counting the reciever.) Also DTCP would have to be included on the production side to be effective. (I've seen a few Madonna videos days before they hit the air.) And nobody in the industry wants that. (FC-AL, RAID 5, and SDI are already too expensive.) And there's that 2006 [or 80% adoption] deadline. The good news is that some video nuts are buying the sets to watch DVDs. [BTW some of Commisioner Ness' other speeches present a more balanced view of the government's position: http://www.fcc.gov/commissioners/ness/spmain.htm ] __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 28 15:00:21 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA10966 for dvd-discuss-outgoing; Mon, 28 Aug 2000 15:00:21 -0400 Received: from smtp05.primenet.com (smtp05.primenet.com [206.165.6.135]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA10963 for ; Mon, 28 Aug 2000 15:00:19 -0400 Received: (from daemon@localhost) by smtp05.primenet.com (8.9.3/8.9.3) id MAA00166 for ; Mon, 28 Aug 2000 12:00:46 -0700 (MST) Received: from sessions.phx.primenet.com(206.132.239.114), claiming to be "heorot.lumbercartel.com" via SMTP by smtp05.primenet.com, id smtpdAAA4yaika; Mon Aug 28 12:00:34 2000 Received: from frankenstein.lumbercartel.com (IDENT:dcs@frankenstein.lumbercartel.com [192.168.6.2]) by heorot.lumbercartel.com (8.9.3/8.8.7) with SMTP id MAA03572 for ; Mon, 28 Aug 2000 12:00:22 -0700 From: "D. C. Sessions" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] The US v O'Brien standard Date: Mon, 28 Aug 2000 11:50:18 -0700 X-Mailer: KMail [version 1.0.29] Content-Type: text/plain References: <20000826015150.8514.qmail@web509.mail.yahoo.com> <20000828113431.B714@localhost> In-Reply-To: <20000828113431.B714@localhost> MIME-Version: 1.0 Message-Id: <00082812002000.01636@frankenstein.lumbercartel.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, 28 Aug 2000, Paul Fenimore wrote: > On Mon, Aug 28, 2000 at 12:52:24PM +0300, Sampo A Syreeni wrote: > > On Fri, 25 Aug 2000, Bryan Taylor wrote: > > > > >In O'Brien, it was clear: burning your draft card is conduct. There's > > >no analog here. What exactly is the conduct in offering to the public a > > >computer program? > > > > Considering the roots of the 'speech' protected by the 1st Amendment, > > where's the speech here? Expansive interpretations of course cover computer > > programs and I agree with Tourezky, but considering this from the > > perspective of ideological and political speach, the act of making available > > an executable takes a very small role. > > But isn't the real problem here that whether or not something is an > "executable" file is not a property of the file. Instead it is a > property of the computer on which the file is run, and what _other_ > files are on the computer. Expansive or not, the same 'expansion' covers cookbooks in exactly the same way. One might argue that cookbooks are only subject to intermediate scrutiny thereby, protected only by the lack of a Governmental charter to protect us from cholesterol. Fair enough. What then about the various "how to be an effective advocate" publications? Obviously just as functional as a cookbook. Perhaps there is no Governmental reason to regulate advocacy. Etc. After all, as long as the State isn't actually banning a particular book it shouldn't really matter WHY they don't, should it? -- | Engineers solve problems -- it's what we do. | | Do you want to be a problem? | | D. C. Sessions === dcs@lumbercartel.com | From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 28 15:18:12 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA11415 for dvd-discuss-outgoing; Mon, 28 Aug 2000 15:18:12 -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 PAA11412 for ; Mon, 28 Aug 2000 15:18:09 -0400 Message-ID: <20000828191759.17226.qmail@web509.mail.yahoo.com> Received: from [131.44.121.4] by web509.mail.yahoo.com; Mon, 28 Aug 2000 12:17:59 PDT Date: Mon, 28 Aug 2000 12:17:59 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] The US v O'Brien standard To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-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: > > A law prohibiting destruction of Selective Service > > certificates no more abridges free speech on its face than a > > motor vehicle law prohibiting the destruction of drivers' > > licenses, or a tax law prohibiting the destruction of books > > and records. [391 U.S. 367, 376] > Burning a draft card is, in essence, a symbolically > and functionally revolutionary act. Burning a draft > card is destroying a part of the governmental > machinery that enables selective service. It is tearing > down the small piece of government that you are > forced to carry with you. Kaplan would have banned O'Brien from issuing flyers to his protest and from describing his method: "Take draft card, add flame". There are 5 steps involved in using software to do a functional task: 1. Write source code 2. Compile into object code 3. Distribute the software [either as source or object or both] 4. Install the software on a specific compatible computer 5. Execute the software Only step 5 represents "conduct". Maybe 4 is grey. Since software is a 'literary work' and websites are members of the press, item 3 is "conduct" about as much as vibrating your vocal cords or scratching your pen on a page is. __________________________________________________ Do You Yahoo!? Yahoo! Mail - Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 28 15:26:13 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA11571 for dvd-discuss-outgoing; Mon, 28 Aug 2000 15:26:13 -0400 Received: from dial249.roadrunner.com (sf-du249.cybermesa.com [209.12.75.249]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA11568 for ; Mon, 28 Aug 2000 15:26:08 -0400 Received: (from paul@localhost) by dial249.roadrunner.com (8.8.7/8.8.7) id NAA01984 for dvd-discuss@eon.law.harvard.edu; Mon, 28 Aug 2000 13:28:03 -0600 Date: Mon, 28 Aug 2000 13:28:01 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] DVD-CCA v. McLaughlin: linking Message-ID: <20000828132801.A1894@localhost> References: <20000828024604.A1994@localhost> <20000828060849.C11529@eldritchpress.org> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <20000828060849.C11529@eldritchpress.org>; from eldred@eldritchpress.org on Mon, Aug 28, 2000 at 06:08:49AM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Mon, Aug 28, 2000 at 06:08:49AM -0400, Eric Eldred wrote: > (But, of course, if the California judge likes Kaplan's > idea about linking, then all bets are off--as well as > any predictions as to what will happen with e-commerce.) The problems created by this sort of linking ruling are hugely larger than e-commerce. This point was made in the context of community standards of obscenity by others in earlier postings. Perhaps I will be sentenced to flogging by the Taliban one day for putting a picture of my sister and I up on the web --- after all her face would be showing. Or I could be sentenced to hard/slave labor in China for publicly hammering some Maoist partisan who says that an oppressive government was necessary to feed the populace in China -- us U.S. residents just don't understand the economics of deprivation. Never mind that a simple, "Mao, the idea that everyone is going to make 5/50/whatever kilos/yr. of steel in their backyard and give China a 'great leap forward' is one of the stupidist ideas in the history of the world. 10 million people will starve because no one will be growing rice. What will people eat? Steel? Or perhaps the slag?" puts the false free speech vs. feeding the populace dichotomy in perspective. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 28 15:27:36 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA11645 for dvd-discuss-outgoing; Mon, 28 Aug 2000 15:27:36 -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 PAA11625 for ; Mon, 28 Aug 2000 15:27:21 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id PAA12000 for dvd-discuss@eon.law.harvard.edu; Mon, 28 Aug 2000 15:37:05 -0400 Date: Mon, 28 Aug 2000 15:36:55 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] MPA stopping paralell importing in NZ Message-ID: <20000828153655.A11959@eldritchpress.org> References: <00082823262303.13842@leopard.lan> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <00082823262303.13842@leopard.lan>; from kyhwana@world-net.co.nz on Mon, Aug 28, 2000 at 11:20:13PM +1200 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Mon, Aug 28, 2000 at 11:20:13PM +1200, Daniel Richards wrote: > -----BEGIN PGP SIGNED MESSAGE----- > Hash: SHA1 > > It looks like the MPA (the international versiion of the MPAA) is unhappy that > video/DVD stores are importing DVD's that havn't screened in NZ cinema's yet. > It's really kinda stupid, since the reason they are doing this is because of > zombie^H^H^H^H^H^Hconsumer demand. All this means if they do get the government > to change the law (ala DMCA) is that the video stores will lose out, and people > will order the DVD's over the net. > URL is http://onenews.nzoom.com/national/2000/08/28/00032690.htm > Of course, I still keep hearing players that follow region coding (I think > we're region 4) are illegal, but I havn't seen any legislation to back this up. > (Im guessing it has to do with fraud and the consumers gaurentee's act/Fair > trading act) Has New Zealand considered making a case against MPA, for restraint of free international trade. to WTO? It would seem this policy only benefits the USofA net "intellectual property" exporters. From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 28 15:31:53 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA11742 for dvd-discuss-outgoing; Mon, 28 Aug 2000 15:31:53 -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 PAA11739 for ; Mon, 28 Aug 2000 15:31:50 -0400 Message-ID: <20000828193143.27488.qmail@web515.mail.yahoo.com> Received: from [131.44.121.4] by web515.mail.yahoo.com; Mon, 28 Aug 2000 12:31:43 PDT Date: Mon, 28 Aug 2000 12:31:43 -0700 (PDT) From: Bryan Taylor Subject: [dvd-discuss] 3rd Party Speech Veto Unconsitutional -- Young v Simi Valley To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I found a GREAT case decided 6/20/2000 that held a Simi Valley zoning ordinence facially unconstitutional because it offered favored private 3rd parties an effective veto over certain forms of controversial expression (topless dancing). This decision rocks! Kaplan's interpretation of (a)(2) giving the copyright holder authority to approve code distribution is facially unconstitutional by this standard. It also seems that his failure to grant standing to an overbreadth challenge not brought by the "fair use community" is flat out wrong. __________________________ Young v. Simi Valley 97-56484 (9th Cir. 2000) Summary: http://bioinformatics.ucsf.edu/bwtaylor/1st_Amendment/cont_draft.html#Young_v_Simi_Valley Full opinion: http://www.ce9.uscourts.gov/web/newopinions.nsf/4bc2cbe0ce5be94e88256927007a37b9/1a4a00236febb12888256927007a743c?OpenDocument&Highlight=2,97-56484 Under the overbreadth doctrine, a plaintiff may challenge an overly-broad statute or regulation by showing that it may inhibit the First Amendment rights of parties not before the court, even if his own conduct is not protected. The overbreadth doctrine is based on the observation that "the very existence of some broadly written laws has the potential to chill the expressive activity of others not before the court." Forsyth County v. Nationalist Movement, 505 U.S. 123, 129 (1992); It is, however, unconstitutional for a local government to impose a procedural requirement that delegates to certain favored private parties the unfettered power to veto, at any time prior to governmental approval and without any standards or reasons, another's right to engage in constitutionally protected freedom of expression. Thus, the present system, under which private third parties may effectively nullify, for any reason, the few areas in the City set aside for potential adult uses, makes it unreasonably difficult, if not impossible, for an adult use applicant to complete the permit process. "A prior restraint exists when the enjoyment of protected expression is contingent on the approval of government officials." Baby Tam I, 154 F.3d. 1100. We hold that a city cannot accomplish through private parties that which it is forbidden to do directly under the First Amendment. See Rutan v. Republican Party, 497 U.S. 62, 77-78 (1990) (stating that "[w]hat the First Amendment precludes the government from commanding directly, it also precludes the government from accomplishing indirectly"). A similar statute involving a private party veto was struck down pursuant to the Establishment Clause in Larkin v. Grendel's Den, Inc., 459 U.S. 116 (1982). In Larkin, the Supreme Court held unconstitutional a Massachusetts statute that gave churches and schools the power effectively to veto applications for liquor licenses within a 500-foot radius of the church or school. __________________________________________________ Do You Yahoo!? Yahoo! Mail - Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 28 15:46:59 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA11804 for dvd-discuss-outgoing; Mon, 28 Aug 2000 15:46:59 -0400 Received: from mail.lemuria.org (lemuria.borgfelde.ricardo.de [195.244.103.65]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id PAA11801 for ; Mon, 28 Aug 2000 15:46:57 -0400 Received: from lemuria.org by mail.lemuria.org via rsmtp with bsmtp id for ; Mon, 28 Aug 2000 21:36:23 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Received: by lemuria.org via sendmail with stdio id for dvd-discuss@eon.law.harvard.edu; Mon, 28 Aug 2000 21:34:49 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Date: Mon, 28 Aug 2000 21:34:49 +0200 From: Tom Vogt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] DVD CCA Opposition to Pavlovich Quash Motion Message-ID: <20000828213449.A11430@lemuria.org> References: Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0pre3i In-Reply-To: X-Privacy: If you can, please encrypt your mails - finger for key Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Leland Ray wrote: > Most companies that sell content significantly increase the price > when marketing in other countries. In software, much of the > markup is from the distributors in those countries that rely on > their exclusive contracts to hold virtual monopolies. I wonder > if the same system also haunts movies...does anyone understand > that business who can enlighten us? a tiny bit. region codings are a mechanism to enforce those exclusive contracts. specifically, the same movie can be distributed by different movie mafia members in different parts of the world. the region codes ensure that this market division line can't be crossed and that for any DVD of movie X sold in the US, company A gets it's share, while for any DVD sold in europe, company B gets it's share. -- "The net treats censorship as a malfunction and re-routes around it." (John Gilmore) From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 28 15:48:23 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA11883 for dvd-discuss-outgoing; Mon, 28 Aug 2000 15:48:23 -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 PAA11865 for ; Mon, 28 Aug 2000 15:48:11 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id PAA12032 for dvd-discuss@eon.law.harvard.edu; Mon, 28 Aug 2000 15:57:52 -0400 Date: Mon, 28 Aug 2000 15:57:42 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] DVD CCA Opposition to Pavlovich Quash Motion Message-ID: <20000828155742.B11959@eldritchpress.org> References: <200008272358.TAA20573@soggy-fibers.ai.mit.edu> <20000827230336.B11216@eldritchpress.org> <200008281217.IAA22545@soggy-fibers.ai.mit.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <200008281217.IAA22545@soggy-fibers.ai.mit.edu>; from rst@ai.mit.edu on Mon, Aug 28, 2000 at 08:17:00AM -0400 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Mon, Aug 28, 2000 at 08:17:00AM -0400, Robert S. Thau wrote: > Eric Eldred writes: > > "Access control" is still a "function" that > > is granted to the DVD-CCA here to control, not the copyright > > holder. (I still think this is worth a test, just to find out.) > > It is definitely a new right, one that is not covered > > by traditional copyright law, and the fact that access and > > copying are two different functions in the law implies that > > they come with separate authorizations. And Kaplan says > > neither comes with first sale. > > It's one thing to argue that the access control right no longer > applies after sale under the first sale doctrine. It's quite another > to argue that the grant of the access control right itself is somehow > illegitimate. The one doesn't get you the other. True, but they could both be correct anyway. In any case, we have to deal with Kaplan's interpretation here, not yours (which might be better in some other realm). And what was his finding on this? > (N.B. loss of rights at first sale is quite enough to make DeCSS > legitimate --- see the Thau/Taylor LOC comment. But it wouldn't get > the law itself thrown out, which is something you seem to insist on). I think it is important not to mix the two up. It is quite possible that what Kaplan is saying is that first sale or traditional fair use law does occur in the case of COPY CONTROL under DMCA. But that it is not necessary for the first sale or fair use to apply to ACCESS CONTROL. Therefore, his conclusion that Congress preserved the right but gave no way to obtain it. So, insofar as access control is a new right, it has to be substantiated in regards to the First Amendment scrutiny and whether or not it is constitutional. > > > Another, of course, is that in the former case, DeCSS is plainly > > > legal, since it never grants access in a case where a licensed CSS > > > implementation would not (taking the plaintiffs' experts at their word > > > that region coding and the like are mechanisms which are *separate* > > > from CSS, and that region coding restrictions are not imposed by CSS > > > itself). > > > > Not really, if one goes on to consider various possible scenarios. > > Suppose that Barnes & Noble issues an encrypted eBook in Microsoft > > Reader format. Let's say it is Kafka's "Metamorphosis and Other > > Stories." It is not possible from the description or publication > > data to determine if the book deserves a new copyright, or if it is > > in the public domain. > > First off, this hypothetical situation has no obvious connection at > all to CSS or DeCSS. It concerns completely different technology. It is only a thought experiment to see how DMCA would apply. As Kaplan notes, he was not forced to confront these issues in the DeCSS case. But if his decision is to have any precedent, he should. Or, at least we should, if we are to be able to make an effective appeal. > I have *no* idea what TPMs are incorporated in Microsoft eBook reader, > or whether any of them would qualify as access controls under my > interpretation of the law. If the only controls present are of the > same form as CSS (all content "encrypted" with a single key, embedded > in all readers), they would not qualify as access controls, and would > be fair game for legitimate reimplementation, without any associated > use controls (barring patents on some of the features, which are a > separate issue). > > But without much more information than you have supplied, it's > impossible to make any informed judgment. Keys are given out at purchase and limit use by some hash using Microsoft Passport for each client. I think it would qualify as access control because there is encryption, and the password does limit access from the one computer you downloaded the eBook to, so its "function" to "actually work" that way is evident. The reason I brought this example up is simply that it is a case where the movie studios don't own all the content, and where the content may or may not be copyrighted (as distinct from the movies, which are mostly copyrighted by the studios). But techically the TPMs are parallel, and it is only the traditional view of a book that suggests to us we view the rights situation in a different way from any other encrypted digital content. So if one looks at the content as a book, one questions why there is any support for a new right to control access as distinct from copying. From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 28 16:01:56 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA11995 for dvd-discuss-outgoing; Mon, 28 Aug 2000 16:01:56 -0400 Received: from dial109.roadrunner.com (sf-du109.cybermesa.com [209.12.75.109]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id QAA11992 for ; Mon, 28 Aug 2000 16:01:52 -0400 Received: (from paul@localhost) by dial109.roadrunner.com (8.8.7/8.8.7) id OAA02306 for dvd-discuss@eon.law.harvard.edu; Mon, 28 Aug 2000 14:03:46 -0600 Date: Mon, 28 Aug 2000 14:03:44 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] (fwd) ALERT: FCC considers restricting digital Message-ID: <20000828140344.A2005@localhost> References: <39A9223A.BA457FE0@mindspring.com> <20000827123606.C633@localhost> <20000828011854.B8223@lemuria.org> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <20000828011854.B8223@lemuria.org>; from tom@lemuria.org on Mon, Aug 28, 2000 at 01:18:54AM +0200 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Mon, Aug 28, 2000 at 01:18:54AM +0200, Tom Vogt wrote: > Paul Fenimore wrote: > > What ever happened to "no bright lines" from Campbell v. Acuff-Rose? It > > is too late to get this into the SDNY proceeding, but there is still CT. > > The EBX book spec contains some equally juicy stuff about their attitude > > towards the audience --- can't trust that bunch of back-stabbing thieves. > > like we said on that other decss list: we're not their enemies, we're their > customers. what happened to these people to turn their mental landscape > into such a sorry piece of shit? I'm still groping for answers that make sense. This is the sort of question whose answer probably depends on lots of factors. 1. Partly, they believe their own rhetoric. "Piracy" prior to about 1900 was a word reserved for murderers, rapists, people who burned occupied ships at sea, etc. No more. 2. Partly rhetoric again. The term of legal art "intellectual property" has been adopted hook-line-and-sinker by people who are looking for an easy idea rather than a correct idea. 3. Partly, the "music industry" and Hollywood were never particularly savory characters. Most of this is before my time, and I haven't delved deeply, _but_ my understanding is that particularly the record companies and their kick-back schemes ("payola") prior to about 1970 were run by real goons. As late as 1985 I remember hearing stories about folks getting beaten to a pulp (in Florida as I recall), who coincidently happened to be investigating "independent" music promoters. 4. Hollywood for most of its existence has been run by control-freaks who almost never sell prints of their theater-release material. Until the advent of the VCR, this gave them something like near-total control of all uses of the works in question. 5. They seem to be convinced that the money is in fine-grained control of all distribution and all use. Digital encodings coupled with electronics computers give them a means to implement that nightmare. 6. Publicly accessible and cheap networks pose a plausible threat to the business model they hold dear. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 28 16:17:15 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA12155 for dvd-discuss-outgoing; Mon, 28 Aug 2000 16:17:15 -0400 Received: from mail.glenatl.glenayre.com (mail.glenatl.glenayre.com [157.230.160.51]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id QAA12152 for ; Mon, 28 Aug 2000 16:17:14 -0400 Received: from mindspring.com (mmcgown.glenatl.glenayre.com [157.230.162.136]) by mail.glenatl.glenayre.com (8.10.1/8.10.1) with ESMTP id e7SKGtX23312 for ; Mon, 28 Aug 2000 16:16:56 -0400 (EDT) Message-ID: <39AAC8BE.88819F4F@mindspring.com> Date: Mon, 28 Aug 2000 16:17:03 -0400 From: mickeym X-Mailer: Mozilla 4.61 [en] (WinNT; I) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss](OT) God Sues Condom Manufacturers Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu God Sues Condom Makers In a federal court today, God filed suit against several condom manufacturers for violations of section 1201 of the Copyright Act. "It has come to my attention that these companies manufacture a device that is being widely used to circumvent a process of my design", God said in a telephone interview. Many people have been using these products, which can be purchased over the Internet, to control access to certain components of their bodies. "I don't see how anyone can justify the use of such circumvention devices, and I will file a million lawsuits a day if that's what it takes", He asserted. Responding to claims the God Himself is "pure sophistry", He said, "Let's see you design a baby. It is definately an art, which I hold as a very valuable trade secret. If I can't protect what I rule, then I don't rule anything." The manufacturers of the banned devices had no official comment, but one source, speaking under condition of anonymity, admitted, "It's a circumvention device, that's all it does." From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 28 16:36:53 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA12290 for dvd-discuss-outgoing; Mon, 28 Aug 2000 16:36:53 -0400 Received: from mail.lemuria.org (lemuria.borgfelde.ricardo.de [195.244.103.65]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id QAA12287 for ; Mon, 28 Aug 2000 16:36:51 -0400 Received: from lemuria.org by mail.lemuria.org via rsmtp with bsmtp id for ; Mon, 28 Aug 2000 22:29:49 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Received: by lemuria.org via sendmail with stdio id for dvd-discuss@eon.law.harvard.edu; Mon, 28 Aug 2000 21:41:56 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Date: Mon, 28 Aug 2000 21:41:56 +0200 From: Tom Vogt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] MPA stopping paralell importing in NZ Message-ID: <20000828214156.D11430@lemuria.org> References: <00082823262303.13842@leopard.lan> <20000828153655.A11959@eldritchpress.org> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0pre3i In-Reply-To: <20000828153655.A11959@eldritchpress.org> X-Privacy: If you can, please encrypt your mails - finger for key Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Eric Eldred wrote: > Has New Zealand considered making a case against MPA, > for restraint of free international trade. to WTO? > It would seem this policy only benefits the USofA > net "intellectual property" exporters. outside the states, at least as far as I'm aware, WTO is largely viewed as just another means of US imperialism. pretty much like the UN - when was the last time action against the states was called, say for invading a souvereign nation without much reason? -- "The net treats censorship as a malfunction and re-routes around it." (John Gilmore) From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 28 16:44:42 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA12378 for dvd-discuss-outgoing; Mon, 28 Aug 2000 16:44:42 -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 QAA12375 for ; Mon, 28 Aug 2000 16:44:41 -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 QAA05878 for ; Mon, 28 Aug 2000 16:45:05 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id QAA27378; Mon, 28 Aug 2000 16:45:05 -0400 (EDT) Date: Mon, 28 Aug 2000 16:45:05 -0400 (EDT) Message-Id: <200008282045.QAA27378@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] (fwd) ALERT: FCC considers restricting digital In-Reply-To: <20000828140344.A2005@localhost> References: <39A9223A.BA457FE0@mindspring.com> <20000827123606.C633@localhost> <20000828011854.B8223@lemuria.org> <20000828140344.A2005@localhost> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Paul Fenimore writes: > 1. Partly, they believe their own rhetoric. "Piracy" prior to about 1900 was > a word reserved for murderers, rapists, people who burned occupied ships > at sea, etc. No more. Hmmm... I used to be sure of this, but the Atlantic article on the music industry at least *seems* to have citations of "piracy" meaning illicit publication from around the turn of the century: http://www.theatlantic.com/cgi-bin/o/issues/2000/09/mann.htm It's not particularly well sourced though, and some of them may be anachronisms (though "the London pirate king" is deceptive if so --- the word is in quotes). It's still an inappropriate word to use for copyright infringement, particularly the small-scale private kind which CSS is supposedly targeted at... rst From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 28 16:58:01 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA12833 for dvd-discuss-outgoing; Mon, 28 Aug 2000 16:58:01 -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 QAA12830 for ; Mon, 28 Aug 2000 16:57:59 -0400 Received: by aero.org id <17597-7>; Mon, 28 Aug 2000 13:58:01 -0700 Received: from mhultra.aero.org(130.221.88.102) via SMTP by aero.org, id smtpdJTBa00384; Mon Aug 28 13:45:29 2000 Received: from ladir01.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Mon, 28 Aug 2000 13:25:21 -0700 Subject: Re: [dvd-discuss] Hollywood -- the nightmare factory To: dvd-discuss@eon.law.harvard.edu X-Mailer: Lotus Notes Release 5.0.3 March 21, 2000 Message-Id: From: Michael.A.Rolenz@aero.org X-MIMETrack: Serialize by Router on ladir01/AeroNet/Aerospace/US(Release 5.0.3 |March 21, 2000) at 08/28/2000 01:25:21 PM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Date: Mon, 28 Aug 2000 13:45:36 -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu What dreams?....The Brady Bunch Movie I &II, FlintstonesI & II, Bevery HillBillies, MI-I&II, Loused In Space, what other dreams can one miss?....The Donna Reed Show Movie I suppose.....The dream factory seems to be dreaming that it IS the dream factory.....well the last film I went to in public was Star Trek-Generations (and found myself computing mv^2 as the saucer section did some clearcutting of a virgin landscape) Personally, I don't plan on buying DVDs anytime in the near future. I find their attitude rather cynical-that as a consumer I will rush out and buy the latest geegaww of technology....boycott the DVD! John Schulien Sent by: To: dvd-discuss@eon.law.harvard.edu owner-dvd-discuss@eon.law.h cc: arvard.edu Subject: [dvd-discuss] Hollywood -- the nightmare factory 08/28/00 10:05 AM Please respond to dvd-discuss > That is what made America great, not Hollywood, Sir. > And it's that spirit, the freedom the Constitution > is supposed to protect, those real dreams, not > movie fantasies, that your ruling puts into > danger. Much of the goodwill towards the movie industry is based on the notion that Hollywood is "where dreams come from." These cases are quickly turning Hollywood into the place "where nightmares come from", which can only erode popular support for the movie industry. From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 28 17:18:02 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA14077 for dvd-discuss-outgoing; Mon, 28 Aug 2000 17:18:02 -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 RAA14074 for ; Mon, 28 Aug 2000 17:18:00 -0400 Received: by aero.org id <17271-2>; Mon, 28 Aug 2000 14:18:08 -0700 Received: from mhultra.aero.org(130.221.88.102) via SMTP by aero.org, id smtpdMUBa00384; Mon Aug 28 14:17:12 2000 Received: from ladir01.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Mon, 28 Aug 2000 13:32:19 -0700 Subject: Re: [dvd-discuss] The US v O'Brien standard To: dvd-discuss@eon.law.harvard.edu X-Mailer: Lotus Notes Release 5.0.3 March 21, 2000 Message-Id: From: Michael.A.Rolenz@aero.org X-MIMETrack: Serialize by Router on ladir01/AeroNet/Aerospace/US(Release 5.0.3 |March 21, 2000) at 08/28/2000 01:32:18 PM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Date: Mon, 28 Aug 2000 14:17:20 -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Excellent points....furthermore, by what reason does the DMCA involve the governement into the enforcement of what is essentually a civil action - copying. The government should not be involved in the punishment of such acts other than providing the court system for trial and the mechanism for enforcement of the judgement. The DMCA does not enhance the operation of government or society as a whole ("except to make works more readily available" - BULL...the profit motive makes them available. No one says that the studios EVER had to release movies on videotape. Profits made that attractive.). The government should not be used as the enforce for a private group of individuals intent upon maximizing their profits. John Schulien Sent by: To: dvd-discuss@eon.law.harvard.edu owner-dvd-discuss@eon.law.h cc: arvard.edu Subject: [dvd-discuss] The US v O'Brien standard 08/28/00 10:29 AM Please respond to dvd-discuss > A law prohibiting destruction of Selective Service > certificates no more abridges free speech on its face than a > motor vehicle law prohibiting the destruction of drivers' > licenses, or a tax law prohibiting the destruction of books > and records. [391 U.S. 367, 376] ... all of which are documents which functionally serve governmental purposes. Draft cards are a functional part of the selective service machinery. Drivers licenses are a functional part of the motor vehicle enforcement machinery. Books and records containing tax records are a functional part of the tax collection machinery. All of which, if destroyed will harm the ability of the government to carry out governmental functions -- the draft, motor vehicle law enforcement, tax collection. Burning a draft card is, in essence, a symbolically and functionally revolutionary act. Burning a draft card is destroying a part of the governmental machinery that enables selective service. It is tearing down the small piece of government that you are forced to carry with you. However, CSS serves no governmental function. The DVD-CCA is not a government branch. It is a private trade organization. It is completely inappropriate for Kaplan to use this limited governmental power -- created in a time of perceived national crisis to protect the machinery of government -- and therefore the national security of the country, to prop up a failed encryption system designed to control the DVD player market. From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 28 17:22:37 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA14196 for dvd-discuss-outgoing; Mon, 28 Aug 2000 17:22:37 -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 RAA14193 for ; Mon, 28 Aug 2000 17:22:34 -0400 Received: (from paul@localhost) by dial147.roadrunner.com (8.8.7/8.8.7) id PAA02851 for dvd-discuss@eon.law.harvard.edu; Mon, 28 Aug 2000 15:24:31 -0600 Date: Mon, 28 Aug 2000 15:24:30 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] [even further off-topic?] Human Genome project Message-ID: <20000828152429.A2762@localhost> References: <39AAC8BE.88819F4F@mindspring.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <39AAC8BE.88819F4F@mindspring.com>; from mickeym@mindspring.com on Mon, Aug 28, 2000 at 04:17:03PM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Perhaps we can sue the DNA mappers for using restriction enzymes to access particular excerpts of our DNA? After all, restriction enzymes do "in fact work" to limit the scope of DNA that is accessed, thus proving the efficaciousness of the chromosome-at-a-time reproduction process as an access control and might-as-well-be-copy-prevention technology. "Circumvention!" Q.E.D. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 28 17:29:49 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA14504 for dvd-discuss-outgoing; Mon, 28 Aug 2000 17:29:49 -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 RAA14500 for ; Mon, 28 Aug 2000 17:29:47 -0400 Received: by aero.org id <17306-1>; Mon, 28 Aug 2000 14:29:55 -0700 Received: from mhultra.aero.org(130.221.88.102) via SMTP by aero.org, id smtpdJVBa00384; Mon Aug 28 14:17:47 2000 Received: from ladir01.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Mon, 28 Aug 2000 13:39:47 -0700 Subject: RE: [dvd-discuss] DVD CCA Opposition to Pavlovich Quash Motion To: dvd-discuss@eon.law.harvard.edu X-Mailer: Lotus Notes Release 5.0.3 March 21, 2000 Message-Id: From: Michael.A.Rolenz@aero.org X-MIMETrack: Serialize by Router on ladir01/AeroNet/Aerospace/US(Release 5.0.3 |March 21, 2000) at 08/28/2000 01:39:46 PM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Date: Mon, 28 Aug 2000 14:17:56 -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu This is really nothing new. Nazi Germany, Stalinist Russia, Maoist China ALL prevented "undesirable " films from being shown in their countries... It's almost ironic....I could imagine these countries saying to the MPAA etc "your DVDs have scenes that we don't want shown...they must be removed from","but the technology prevents that","NO you want to sell them YOU must remove them from the disk so that no underground movement can alter players to see them PERIOD"... The last time I checked the Constitution had no rights for companies much less a right of maximized profits... Leland Ray To: "'dvd-discuss@eon.law.harvard.edu'" Sent by: owner-dvd-discuss@eon.law.h cc: arvard.edu Subject: RE: [dvd-discuss] DVD CCA Opposition to Pavlovich Quash Motion 08/28/00 11:45 AM Please respond to dvd-discuss I am not completely sure here. >From a purely moral perspective, Hollywood can allow for the enforcement of censorship laws by the existence of a region code but that is different from trying to actively enforce region codes. In other words, if China, or Saudi Arabia, or whatever wants to restrict players sold in its country to be region code X and not allow in players that use other region codes, fine. But keep the MPA and the DVDCCA out of it. However, the MPA may face a more serious problem in that China (for instance) might refuse to allow any American movies in, or might refuse even a modicum of copyright enforcement, if region codes are not actively used to enforce censorship. I have not reviewed the treaties or actual practices used by these countries, but if the situation is anything like software, it is pretty complex. Most companies that sell content significantly increase the price when marketing in other countries. In software, much of the markup is from the distributors in those countries that rely on their exclusive contracts to hold virtual monopolies. I wonder if the same system also haunts movies...does anyone understand that business who can enlighten us? -----Original Message----- From: Tom Vogt [mailto:tom@lemuria.org] Sent: Monday, August 28, 2000 3:48 AM To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] DVD CCA Opposition to Pavlovich Quash Motion the "local censorship laws" argument is a strawman, and there are many more believeable reasons for the scheme. From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 28 17:53:44 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA14657 for dvd-discuss-outgoing; Mon, 28 Aug 2000 17:53:44 -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 RAA14654 for ; Mon, 28 Aug 2000 17:53:43 -0400 Received: from mit.edu (h0050da62b39d.ne.mediaone.net [24.147.217.121]) by chmls05.mediaone.net (8.8.7/8.8.7) with ESMTP id RAA09866; Mon, 28 Aug 2000 17:54:05 -0400 (EDT) Message-ID: <39AADFF9.E28BD6F3@mit.edu> Date: Mon, 28 Aug 2000 17:56:10 -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] Favorable PC Magazine Column Content-Type: text/plain; charset=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 recent column by Michael J. Miller of PC Magazine (http://www.zdnet.com/pcmag/stories/opinions/0,7802,2620784,00.html) is reasonably favorable for our position. - Ravi Nanavati From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 28 18:03:51 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA15155 for dvd-discuss-outgoing; Mon, 28 Aug 2000 18:03:51 -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 SAA15152 for ; Mon, 28 Aug 2000 18:03:50 -0400 Received: from ip165.bedford3.ma.pub-ip.psi.net ([38.32.11.165]) by relay20.smtp.psi.net with smtp (Exim 3.13 #3) id 13TX0o-0002u0-00 for dvd-discuss@eon.law.harvard.edu; Mon, 28 Aug 2000 18:04:14 -0400 From: Ron Gustavson To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss](OT) God Sues Condom Manufacturers Date: Mon, 28 Aug 2000 18:06:20 -0400 Message-ID: References: <39AAC8BE.88819F4F@mindspring.com> In-Reply-To: <39AAC8BE.88819F4F@mindspring.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 SAA15153 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Mon, 28 Aug 2000 16:17:03 -0400, mickeym wrote: >God Sues Condom Makers > > In a federal court today, God filed suit against several condom >manufacturers for violations of section 1201 of the Copyright Act. "It >has come to my attention that these companies manufacture a device that >is being widely used to circumvent a process of my design", God said in >a telephone interview. Many people have been using these products, which >can be purchased over the Internet, to control access to certain >components of their bodies. > > "I don't see how anyone can justify the use of such circumvention >devices, and I will file a million lawsuits a day if that's what it >takes", He asserted. Responding to claims the God Himself is "pure >sophistry", He said, "Let's see you design a baby. It is definately an >art, which I hold as a very valuable trade secret. If I can't protect >what I rule, then I don't rule anything." > > The manufacturers of the banned devices had no official comment, but >one source, speaking under condition of anonymity, admitted, "It's a >circumvention device, that's all it does." > As He was leaving the building, He was heard muttering,"All latex is circumvention." __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 28 18:09:14 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA15937 for dvd-discuss-outgoing; Mon, 28 Aug 2000 18:09:14 -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 SAA15934 for ; Mon, 28 Aug 2000 18:09:13 -0400 Received: (from uucp@localhost) by natsemi-bh.nsc.com (8.8.8/8.6.11) id PAA14569 for ; Mon, 28 Aug 2000 15:09:35 -0700 (PDT) Received: from mailhost1.ia.nsc.com(147.5.200.40) by natsemi-bh.nsc.com via smap (4.1) id xma014375; Mon, 28 Aug 00 15:09:05 -0700 Received: from ball by ia.nsc.com (SMI-8.6/SMI-SVR4) id QAA05468; Mon, 28 Aug 2000 16:09:04 -0600 From: "John Zulauf" To: Subject: [dvd-discuss] New software to challenge CSS is copy protection Date: Mon, 28 Aug 2000 16:13:21 -0600 Message-ID: <000c01c0113d$2d042ee0$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 It has been argued that CSS is copy protection and that DeCSS allows unlimited identical copies. I believe Paul has long argued that decryption cannot be considered copy control, since copies can be made before or after decryption. the P's argued that the encrypted VOBs while copiable are unusable. Software however should allow a challenge to this. Having actual software like this around would allow this issue to no longer be addressed as the ever problematic hypothetical. I propose a new software player or CSS decrypter be constructed with the following properties: Please edit and enlarge this rough spec, the notes, questions, and comments. (1) Required inputs (1.1)The encrypted .VOB files (1.2)The encrypted keys from the DVD (whichever are necessary) (2) Required outputs (2.1a)The decrypted .VOB files (2.1b)Playback of the .VOB files (with no clear text hard disk copy) Notes: (a) Preferable to use of the Stevenson attack to showing such as to deflect "you used the player key" accusation. (b) I put in 2.1a and 2.1b as options for the design. 2.1b is interesting as it enables only play and not copying, and thus is less suseptible to a charge or enabling piracy. (c) (2) should expressly require that the content be on a hard disk and NOT a DVD. This means that the content would already have to be copied from the DVD and THUS the TPM would have to have already been circumvented (since if it were not, why is this content not on the DVD). So while the player would allow playback of circumvent content -- it itself would not be circumventing. Or one would have to argue that the circumvention is in the playback not the copy control or --- it get bumpy for the P's from there out. Questions to be resolved: (i) Is accessing the encrypted keys an act of circumvention? (ii) Are the required inputs easy accessible using licensed players? IIRC these leave the drive in the unlocked state, but I'm not sure about the keys. Comments: I give this idea a 10 -- of course I'm biased From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 28 18:09:38 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA15980 for dvd-discuss-outgoing; Mon, 28 Aug 2000 18:09:38 -0400 Received: from world.std.com (root@world-f.std.com [199.172.62.5]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id SAA15977 for ; Mon, 28 Aug 2000 18:09:37 -0400 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 SAA03139 for ; Mon, 28 Aug 2000 18:08:05 -0400 (EDT) Mime-Version: 1.0 Message-Id: In-Reply-To: <20000828160559.A10244@lemuria.org> References: <20000827231229.C11216@eldritchpress.org> <200008280834.EAA22167@soggy-fibers.ai.mit.edu> <20000828160559.A10244@lemuria.org> Date: Mon, 28 Aug 2000 18:06:49 -0400 To: dvd-discuss@eon.law.harvard.edu From: "Arnold G. Reinhold" Subject: Re: [dvd-discuss] DVD CCA Opposition to Pavlovich Quash Motion 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 4:05 PM +0200 8/28/2000, Tom Vogt wrote: >"Robert S. Thau" wrote: >> Huh? Unless I've lost track, the quote that started this subthread >> was about censorship and nothing else: > >yes - and the argument is that this is a strawman. thrown in by the MPAA to >move attention to piracy, censorship, whatever - just not the issues of >market control, price fixing and customer bullshitting. > Why would the MPAA want to call attention to DCMA's role in enforcing censorship? Fighting piracy and protecting industry profits are issues that the American public generally supports. Employing US laws to enforce the censorship laws of every petty dictator and theocracy on the planet is not. DVD region codes are a trail balloon. The MPAA will have separate region codes for every country on the planet in the next generation of digital media. Perhaps future entertainment products will even include GPS chips so they will know what country they are in and, thus, what they can and cannot play. Anyone who traffics in technology that would allow the Bible to be encoded for Saudi Arabia would be hauled off to jail under 1201. This is political dynamite. Arnold Reinhold From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 28 18:22:17 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA16810 for dvd-discuss-outgoing; Mon, 28 Aug 2000 18:22:17 -0400 Received: from dial162.roadrunner.com (sf-du162.cybermesa.com [209.12.75.162]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id SAA16807 for ; Mon, 28 Aug 2000 18:22:14 -0400 Received: (from paul@localhost) by dial162.roadrunner.com (8.8.7/8.8.7) id QAA03175 for dvd-discuss@eon.law.harvard.edu; Mon, 28 Aug 2000 16:24:12 -0600 Date: Mon, 28 Aug 2000 16:24:11 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] FCC: an outline Message-ID: <20000828162411.A3083@localhost> References: Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: ; from rongus@tiac.net on Fri, Aug 25, 2000 at 01:35:47PM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu The next Federal Communications Commission meeting listed on this page is Thursday, Sept. 14th, 2000 at 9:30 am. The information in the cited document was last update June 15, 2000. Getting a comment to the FCC at least a week ahead should (hopefully give them the opportunity to read it and think. Anyone with a more current schedule should post their info. Perhaps a joint submission by interested participants from this forum is appropriate? Here is my stab at a consolidation of points made so far: (1) Digital ain't different. (a) The issue is that conversion from digital to analog is cheap. (i) The release format is irrelevant. (ii) Digital works are not new: player piano, textual books. (iii) Confusion between electronic transmission and digital encodings. (b) Digital works are already available. Examples. (2) Imposition of so-called copy control will violate judicial precedent federal statute and Congressional intent. (a) Sony v. Universal ("Betamax" decision), paraphrase: "non-infringing uses immunize devices and their makers from non-specific charges of contributory infringement". (b) Campbell v. Acuff-Rose ("2 Live Crew" Pretty Woman infringement case.) "No bright lines" in determining fair use. Technological measures are bright lines, and constitute an improper delegation for determining sect. 107 fair use criteria. (c) Nimmer: "a restrictive legend clearly does not restrict fair use". (d) By analogy with 1201(k)(2), digital copy control should not apply to digital broadcasts any more than macrovision applies to analog broadcasts (i.e. not at all). (e) Existing statutory basis for access control on broadcast under 47 U.S.C. 553, 605 makes no pretense of extending to copy control. (f) Senator Ashcroft specifically sought to insure that video-capture cards operated when enacting DMCA (See Cong. Record), yet this the outcome the FCC seeks is contrary to Sen. Ashcrofts intent. (3) Large coypright owners are acting contrary to judicial precedent. (a) : "Stop unauthorized, casual copying of commercial entertainment content." Unauthorized is not the same as illegal, "commercial entertainment content" is not relevant to finding of infringement. This is an attempt to abolish fair use as a constitutionally-mandated defense to copyright infringement. (b) : Ditto, more or less. (c) Divx failed. Industry seeks to achieve by regulation what it could not by competition in an open market. Conclusion: The issue is not espcially whether the audience makes copies or not. It is whether a few individuals engage in illegal activity by systematically distributing without the authority of the copyright owner. The larger the scale of this distribution, the easier it is to detect and litigate under section 106. Anti-copying TPMs have no place in FCC digital cable rules. From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 28 18:29:39 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA16920 for dvd-discuss-outgoing; Mon, 28 Aug 2000 18:29:39 -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 SAA16917 for ; Mon, 28 Aug 2000 18:29:38 -0400 Received: (from uucp@localhost) by natsemi-bh.nsc.com (8.8.8/8.6.11) id PAA20848 for ; Mon, 28 Aug 2000 15:29:57 -0700 (PDT) Received: from mailhost1.ia.nsc.com(147.5.200.40) by natsemi-bh.nsc.com via smap (4.1) id xma020595; Mon, 28 Aug 00 15:28:41 -0700 Received: from ball by ia.nsc.com (SMI-8.6/SMI-SVR4) id QAA09080; Mon, 28 Aug 2000 16:28:39 -0600 From: "John Zulauf" To: Subject: Re: [dvd-discuss] FCC: an outline Date: Mon, 28 Aug 2000 16:32:55 -0600 Message-ID: <000d01c0113f$e9173d00$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 Here's the text of the letter I sent to the FCC last week: Regarding PP Docket No. 00-67 Please prevent the CPSA or other 5C type "copy protection" schemes from becoming required or even allowed on US HDTV or other digital broadcasts. Home recording (betamax) and other fair use rights depend on it being prevented. The content access and copy managment schemes proposed before the FCC are draconian in the extreme. All content would be watermarked and/or encrypted, all freedom for traditional fair use (archival, exerption, parody, critique, et. al.) could and would be prevented unilaterally by the content providers. This is an unacceptable change from the last 50 years of broadcast media. The case made before the FCC for these measures is based on a lie -- that digital content is more at risk from piracy than is analog. Inexpensive ($25) silicon chips are now available (and in the heart of the TiVO and ReplayTV device) to convert from analog to digital content in real-time. Thus current broadcast and pay-per-view analog content is equal subject to the "infinite reproducibility" and "internet transmission" risks the media companies decry. Since the risk of piracy is no higher for digital content, there can be no need to more greatly restrict home recording, fair use, and the rights stemming from the Betamax decision of a generation ago. >From reading your comments regarding digital TV recording, I felt I must respond regarding this issue. The media content companies wish to impose draconian measure, based on the lie of greater risk. The risk is in fact that of losing the "limited times" and "fair use" constitutional rights to an unflinching, restrictive set of access and copy controls on digital content. Please see my comments to the Librarian of Congress on this matter. http://www.loc.gov/copyright/reports/studies/dmca/comments/Init011.pdf Finally, when listening to the media companies, one cannot but think "the lady doth protest too much." With each new media technology (from Guttenburg to HDTV) the creators of content have cried "the sky is falling." Consider the uproar over VCR leading to the Betamax decision. In each case the profits of these companies have not been eroded, but instead greatly increase with the adoption of each new technology. Even the "nightmare scenario" of Napster has seen CD sale rise in an unbroken stream. Never before has the government bowed before the pressure of these fearful media Chicken Littles a the cost of individual freedom. Please ignore their pleas -- in they end they will profit from it without an undue burden being place upon the citizens or consumers. Thank you for protecting the right of the citizens of the United States in this matter, Sincerely, John M. Zulauf Longmont, CO From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 28 18:45:19 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA18002 for dvd-discuss-outgoing; Mon, 28 Aug 2000 18:45:19 -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 SAA17999 for ; Mon, 28 Aug 2000 18:45:18 -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 SAA05584 for ; Mon, 28 Aug 2000 18:45:42 -0400 Date: Mon, 28 Aug 2000 18:45:42 -0400 (EDT) From: Ole Craig To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] New software to challenge CSS is copy protection In-Reply-To: <000c01c0113d$2d042ee0$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 08/28/00 at 16:13, 'twas brillig and John Zulauf scrobe: [...] > > I propose a new software player or CSS decrypter be constructed with the > following properties: > > Please edit and enlarge this rough spec, the notes, questions, and comments. > > (1) Required inputs > (1.1)The encrypted .VOB files > (1.2)The encrypted keys from the DVD (whichever are necessary) > > (2) Required outputs > (2.1a)The decrypted .VOB files > (2.1b)Playback of the .VOB files (with no clear text hard disk copy) > Notes: > (a) Preferable to use of the Stevenson attack to showing such as to deflect > "you used the player key" accusation. > (b) I put in 2.1a and 2.1b as options for the design. 2.1b is interesting > as it enables only play and not copying, and thus is less suseptible to a > charge or enabling piracy. > (c) (2) should expressly require that the content be on a hard disk and NOT > a DVD. This means that the content would already have to be copied from the > DVD and THUS the TPM would have to have already been circumvented (since if > it were not, why is this content not on the DVD). So while the player would > allow playback of circumvent content -- it itself would not be > circumventing. Or one would have to argue that the circumvention is in the > playback not the copy control or --- it get bumpy for the P's from there > out. > > > Questions to be resolved: > (i) Is accessing the encrypted keys an act of circumvention? > (ii) Are the required inputs easy accessible using licensed players? IIRC > these leave the drive in the unlocked state, but I'm not sure about the > keys. If I understand it correctly, the problem here would be that you can't get at the title key using normal software -- i.e. you need the player key to get the title key, and the title key is what's needed to decrypt the work. Stevenson's attack is on the player keys. While a cryptographic attack may be possible on the title key also, TTBOMK that wasn't discussed. Encrypted VOBs are accessible under some circumstances, yes -- it's the title key with which they are encrypted that's not readily available. 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 Mon Aug 28 19:41:52 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA19009 for dvd-discuss-outgoing; Mon, 28 Aug 2000 19:41:52 -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 TAA19006 for ; Mon, 28 Aug 2000 19:41:51 -0400 Received: by aero.org id <17097-4>; Mon, 28 Aug 2000 16:42:05 -0700 Received: from mhultra.aero.org(130.221.88.102) via SMTP by aero.org, id smtpdCAAa08662; Mon Aug 28 16:41:56 2000 Received: from ladir01.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Mon, 28 Aug 2000 16:41:45 -0700 Subject: Re: [dvd-discuss](OT) God Sues Condom Manufacturers To: dvd-discuss@eon.law.harvard.edu X-Mailer: Lotus Notes Release 5.0.3 March 21, 2000 Message-Id: From: Michael.A.Rolenz@aero.org X-MIMETrack: Serialize by Router on ladir01/AeroNet/Aerospace/US(Release 5.0.3 |March 21, 2000) at 08/28/2000 04:41:44 PM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Date: Mon, 28 Aug 2000 16:42:01 -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu That's great...WELL done From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 28 19:46:51 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA19126 for dvd-discuss-outgoing; Mon, 28 Aug 2000 19:46:51 -0400 Received: from mail.lemuria.org (lemuria.borgfelde.ricardo.de [195.244.103.65]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id TAA19123 for ; Mon, 28 Aug 2000 19:46:50 -0400 Received: from lemuria.org by mail.lemuria.org via rsmtp with bsmtp id for ; Tue, 29 Aug 2000 01:36:18 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Received: by lemuria.org via sendmail with stdio id for dvd-discuss@eon.law.harvard.edu; Tue, 29 Aug 2000 00:49:20 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Date: Tue, 29 Aug 2000 00:49:20 +0200 From: Tom Vogt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] DVD CCA Opposition to Pavlovich Quash Motion Message-ID: <20000829004920.A12538@lemuria.org> References: <20000827231229.C11216@eldritchpress.org> <200008280834.EAA22167@soggy-fibers.ai.mit.edu> <20000828160559.A10244@lemuria.org> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0pre3i In-Reply-To: X-Privacy: If you can, please encrypt your mails - finger for key Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu "Arnold G. Reinhold" wrote: > This is political dynamite. so let's blow it up. -- "The net treats censorship as a malfunction and re-routes around it." (John Gilmore) From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 28 20:20:37 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA20628 for dvd-discuss-outgoing; Mon, 28 Aug 2000 20:20:37 -0400 Received: from mta5.rcsntx.swbell.net (mta5.rcsntx.swbell.net [151.164.30.29]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id UAA20625 for ; Mon, 28 Aug 2000 20:20:36 -0400 Received: from swbell.net ([64.216.211.82]) by mta5.rcsntx.swbell.net (Sun Internet Mail Server sims.3.5.2000.01.05.12.18.p9) with ESMTP id <0G0100BZD28DDA@mta5.rcsntx.swbell.net> for dvd-discuss@eon.law.harvard.edu; Mon, 28 Aug 2000 19:19:26 -0500 (CDT) Date: Mon, 28 Aug 2000 19:11:35 -0500 From: Jolley Subject: Re: [dvd-discuss] (fwd) ALERT: FCC considers restricting digital To: dvd-discuss@eon.law.harvard.edu Message-id: <39AAFFB7.421B5014@swbell.net> Organization: Southwestern Bell Internet Services MIME-version: 1.0 X-Mailer: Mozilla 4.72 [en]C-SBI-NC472 (Win98; U) Content-type: text/plain; charset=us-ascii Content-transfer-encoding: 7bit X-Accept-Language: en References: <39AA61CE.49277094@travel-net.com> <00082809134500.01422@frankenstein.lumbercartel.com> <39AA96A6.EB2EE452@mit.edu> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu It has finally hit me full force that what the MPAA really wants is complete control of the player market for the major reason of stopping fair use (what they call piracy.) CSS is not at all about shuting down the mass-produced illegal copying. It is only for the average consumer. It doesn't pay to go after the small time violaters. Yet the small time consumer is a significant source of profits. I think the MPAA slogan is "keep the honest people honest." I have been thinking of different ways of preserving fair use and let consumers know about the MPAA and other "content provider's" bait and switch tactics. It wasn't until after I had bought a DVD player for my computer did I realize it was useless. Perhaps we should organize a "consumer protection group" to bring this to the attention of the MPAA's enemies (their pirate customers.) We can create a nifty little logo similar to the way Intel had an "Intel inside" logo. Our logo would be heavily advertised and only allowed on content that does not restrict a consumer from actually making fair use of the content. Who knows, this may lead manufactures, in their never ending goal of reducing cost, to build DVD players that can't decrypt DVDs. A significant number of cheap PCs would be purchased with these cheap drives. The only way for the MPAA and others to participate in this lucrative market is to make the content available in an unencrypted form. It's a war. What a terrible business to be in where your customer is your enemy. Most customers haven't realized this yet. Ravi Nanavati wrote: > > No. The way the "Secure Display Initiative" succeeds is the way > DVDs succeeded: bait and switch. Let people think they're buying > an unrestricted display (the way people thought they were buying > unrestricted pieces of plastic), then pull the rug out from under > them. People are starting to move to digital displays and HDTVs > now. All that needs to be ensured is that digital displays shipped > today (or at least the ones shipping in the near future) are > firmware-"upgradeable" to secure displays when the time is right. > This is biggest long-term danger we face: the content cartels > are quickly learning how to route around the consumer's better > instincts. > > - Ravi Nanavati From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 28 20:43:39 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA21106 for dvd-discuss-outgoing; Mon, 28 Aug 2000 20:43:39 -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 UAA21103 for ; Mon, 28 Aug 2000 20:43:38 -0400 Received: from mit.edu (h0050da62b39d.ne.mediaone.net [24.147.217.121]) by chmls06.mediaone.net (8.8.7/8.8.7) with ESMTP id UAA15139; Mon, 28 Aug 2000 20:44:01 -0400 (EDT) Message-ID: <39AB07D1.F394A57C@mit.edu> Date: Mon, 28 Aug 2000 20:46:09 -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] (fwd) ALERT: FCC considers restricting digital References: <39AA61CE.49277094@travel-net.com> <00082809134500.01422@frankenstein.lumbercartel.com> <39AA96A6.EB2EE452@mit.edu> <39AAFFB7.421B5014@swbell.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 Jolley wrote: > > It has finally hit me full force that what the MPAA really wants is > complete control of the player market for the major reason of > stopping fair use (what they call piracy.) CSS is not at all about > shuting down the mass-produced illegal copying. It is only for the > average consumer. It doesn't pay to go after the small time violaters. > Yet the small time consumer is a significant source of profits. > I think the MPAA slogan is "keep the honest people honest." > > I have been thinking of different ways of preserving fair use and > let consumers know about the MPAA and other "content provider's" > bait and switch tactics. It wasn't until after I had bought a DVD > player for my computer did I realize it was useless. Perhaps we > should organize a "consumer protection group" to bring this to the > attention of the MPAA's enemies (their pirate customers.) We can > create a nifty little logo similar to the way Intel had an "Intel > inside" logo. Our logo would be heavily advertised and only allowed > on content that does not restrict a consumer from actually making > fair use of the content. > > Who knows, this may lead manufactures, in their never ending goal > of reducing cost, to build DVD players that can't decrypt DVDs. A > significant number of cheap PCs would be purchased with these cheap > drives. The only way for the MPAA and others to participate in this > lucrative market is to make the content available in an unencrypted > form. > > It's a war. What a terrible business to be in where your customer > is your enemy. Most customers haven't realized this yet. One such group is the Home Recording Rights Coalition (http://www.hrrc.org/) whose alert started this thread, IIRC. They are more a lobbying organization to prevent laws being passed that limit consumer rights, but they might be interested in such a certification program. Even if they don't want to run such a thing themselves, I'm sure they'd have lots of advice and insight that would help you get such a project off the ground. - Ravi Nanavati From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 28 21:22:51 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA21412 for dvd-discuss-outgoing; Mon, 28 Aug 2000 21:22:51 -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 VAA21409 for ; Mon, 28 Aug 2000 21:22:40 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id VAA12533 for dvd-discuss@eon.law.harvard.edu; Mon, 28 Aug 2000 21:32:28 -0400 Date: Mon, 28 Aug 2000 21:32:23 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] The US v O'Brien standard Message-ID: <20000828213223.D11959@eldritchpress.org> References: <20000828191759.17226.qmail@web509.mail.yahoo.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <20000828191759.17226.qmail@web509.mail.yahoo.com>; from bryan_w_taylor@yahoo.com on Mon, Aug 28, 2000 at 12:17:59PM -0700 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Mon, Aug 28, 2000 at 12:17:59PM -0700, Bryan Taylor wrote: > > --- John Schulien wrote: > > > A law prohibiting destruction of Selective Service > > > certificates no more abridges free speech on its face than a > > > motor vehicle law prohibiting the destruction of drivers' > > > licenses, or a tax law prohibiting the destruction of books > > > and records. [391 U.S. 367, 376] > > > Burning a draft card is, in essence, a symbolically > > and functionally revolutionary act. Burning a draft > > card is destroying a part of the governmental > > machinery that enables selective service. It is tearing > > down the small piece of government that you are > > forced to carry with you. > > Kaplan would have banned O'Brien from issuing flyers to his protest and > from describing his method: "Take draft card, add flame". > > There are 5 steps involved in using software to do a functional task: > 1. Write source code > 2. Compile into object code > 3. Distribute the software [either as source or object or both] > 4. Install the software on a specific compatible computer > 5. Execute the software > > Only step 5 represents "conduct". Maybe 4 is grey. Since software is a > 'literary work' and websites are members of the press, item 3 is > "conduct" about as much as vibrating your vocal cords or scratching > your pen on a page is. And isn't Kaplan confusing 3 with 5 here? He seems to think there is something magical about clicking on some link, and either automatically downloading software, or instead going to a text page that has the text on it, or some other textual material. Whether or not the program is downloaded as binary or source has nothing to do with automatically converting 3 into 5--the user still has to execute the program; all it means is that the source might need to be complied--or translated, like a Java program, and this can be done on the fly--but in neither case involuntarily by user. Somehow I believe Kaplan has failed to understand the whole principles of software and computers, and is grossly contorting reality to fit his logic. It is very important he be set straight now. From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 28 21:42:41 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA21550 for dvd-discuss-outgoing; Mon, 28 Aug 2000 21:42:41 -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 VAA21547 for ; Mon, 28 Aug 2000 21:42:30 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id VAA12580 for dvd-discuss@eon.law.harvard.edu; Mon, 28 Aug 2000 21:52:18 -0400 Date: Mon, 28 Aug 2000 21:52:13 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] 3rd Party Speech Veto Unconsitutional -- Young v Simi Valley Message-ID: <20000828215213.E11959@eldritchpress.org> References: <20000828193143.27488.qmail@web515.mail.yahoo.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <20000828193143.27488.qmail@web515.mail.yahoo.com>; from bryan_w_taylor@yahoo.com on Mon, Aug 28, 2000 at 12:31:43PM -0700 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu In the past I believe, courts have upheld the power of Congress to use copyright law to restrict the rights of some to publish, in favor of protecting rights of copyright owners. (Harper v Nation for one). But this cannot apply to DMCA, because the right of publication here is not a usual case of copyright infringement, where a new work allegedly copies an older, copyrighted work. Instead, a whole class of publication is being restricted, and the restriction particulars are based not on whether copies are identical, but whether or not the publishers of new works have received licenses from private parties who have received the license to license from the federal government. And on the content of the publication not the expressions. The right to "access" is being newly made a separate right under copyright. In many ways, Corley is a classic case under the Statute of Anne, where copyright law all began! The new publishers under this statute after 1709/1710 were sued by the old ones, who had been licensed by the Crown. It took many years before these cases were settled, and the result, partially, was the Copyright Clause in the U.S. Constitution. The power of this statement, too, should be recognized: > "[w]hat the First Amendment precludes the government from > commanding directly, it also precludes the government from > accomplishing indirectly"). If Congress failed to pass a noncontradictory statute that has to be interpreted in this way as denying practical fair use, then Kaplan is wrong in saying Congress could do that: we see here that it is specifically precluded from doing so indirectly as well as directly. On Mon, Aug 28, 2000 at 12:31:43PM -0700, Bryan Taylor wrote: > I found a GREAT case decided 6/20/2000 that held a Simi Valley zoning > ordinence facially unconstitutional because it offered favored private > 3rd parties an effective veto over certain forms of controversial > expression (topless dancing). This decision rocks! > > Kaplan's interpretation of (a)(2) giving the copyright holder authority > to approve code distribution is facially unconstitutional by this > standard. It also seems that his failure to grant standing to an > overbreadth challenge not brought by the "fair use community" is flat > out wrong. > __________________________ > > Young v. Simi Valley > 97-56484 (9th Cir. 2000) > Summary: > http://bioinformatics.ucsf.edu/bwtaylor/1st_Amendment/cont_draft.html#Young_v_Simi_Valley > Full opinion: > http://www.ce9.uscourts.gov/web/newopinions.nsf/4bc2cbe0ce5be94e88256927007a37b9/1a4a00236febb12888256927007a743c?OpenDocument&Highlight=2,97-56484 > > Under the overbreadth doctrine, a plaintiff may challenge an > overly-broad statute or regulation by showing that it may inhibit the > First Amendment rights of parties not before the court, even if his own > conduct is not protected. The overbreadth doctrine is based on the > observation that "the very existence of some broadly written laws has > the potential to chill the expressive activity of others not before the > court." Forsyth County v. Nationalist Movement, 505 U.S. 123, 129 > (1992); > > It is, however, unconstitutional for a local government to impose a > procedural requirement that delegates to certain favored private > parties the unfettered power to veto, at any time prior to governmental > approval and without any standards or reasons, another's right to > engage in constitutionally protected freedom of expression. > > Thus, the present system, under which private third parties may > effectively nullify, for any reason, the few areas in the City set > aside for potential adult uses, makes it unreasonably difficult, if not > impossible, for an adult use applicant to complete the permit process. > > "A prior restraint exists when the enjoyment of protected expression is > contingent on the approval of government officials." Baby Tam I, 154 > F.3d. 1100. We hold that a city cannot accomplish through private > parties that which it is forbidden to do directly under the First > Amendment. See Rutan v. Republican Party, 497 U.S. 62, 77-78 (1990) > (stating that "[w]hat the First Amendment precludes the government from > commanding directly, it also precludes the government from > accomplishing indirectly"). > > A similar statute involving a private party veto was struck down > pursuant to the Establishment Clause in Larkin v. Grendel's Den, Inc., > 459 U.S. 116 (1982). In Larkin, the Supreme Court held unconstitutional > a Massachusetts statute that gave churches and schools the power > effectively to veto applications for liquor licenses within a 500-foot > radius of the church or school. > > > > __________________________________________________ > Do You Yahoo!? > Yahoo! Mail - Free email you can access from anywhere! > http://mail.yahoo.com/ -- "Eric" Eric Eldred Eldritch Press mailto:Eldred@EldritchPress.org http://www.eldritchpress.org/EricEldred.vcf From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 28 21:43:54 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA21634 for dvd-discuss-outgoing; Mon, 28 Aug 2000 21:43:54 -0400 Received: from imo-d03.mx.aol.com (imo-d03.mx.aol.com [205.188.157.35]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id VAA21631 for ; Mon, 28 Aug 2000 21:43:54 -0400 From: Consilgere@cs.com Received: from Consilgere@cs.com by imo-d03.mx.aol.com (mail_out_v28.15.) id x.79.8e9ade8 (9726) for ; Mon, 28 Aug 2000 21:43:41 -0400 (EDT) Message-ID: <79.8e9ade8.26dc6f4d@cs.com> Date: Mon, 28 Aug 2000 21:43:41 EDT Subject: Re: [dvd-discuss] Code and assassins 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 > K>Its expressive element no more immunizes its functional > K>aspects from regulation than the expressive motives of an assassin > K>immunize the assassin's action. > Kaplan would therefore ban firearms training manuals. Would it be a > crime to point out that if the president's convertilbe motorcade > proceeds as planned down the parade route that he will be vulnerable to > an assassin located in the book repository? Not the way I read it. He seems to be saying it would be illegal to build a robot that would shoot the President from the book depository, and whether you built it to make that point known is irrelevant. And there is statute law on the books that backs forbidding the ownership of such a robot. From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 28 21:49:50 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA21677 for dvd-discuss-outgoing; Mon, 28 Aug 2000 21:49:50 -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 VAA21674 for ; Mon, 28 Aug 2000 21:49:39 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id VAA12595 for dvd-discuss@eon.law.harvard.edu; Mon, 28 Aug 2000 21:59:27 -0400 Date: Mon, 28 Aug 2000 21:59:22 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] MPA stopping paralell importing in NZ Message-ID: <20000828215922.F11959@eldritchpress.org> References: <00082823262303.13842@leopard.lan> <20000828153655.A11959@eldritchpress.org> <20000828214156.D11430@lemuria.org> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <20000828214156.D11430@lemuria.org>; from tom@lemuria.org on Mon, Aug 28, 2000 at 09:41:56PM +0200 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Mon, Aug 28, 2000 at 09:41:56PM +0200, Tom Vogt wrote: > Eric Eldred wrote: > > Has New Zealand considered making a case against MPA, > > for restraint of free international trade. to WTO? > > It would seem this policy only benefits the USofA > > net "intellectual property" exporters. > > outside the states, at least as far as I'm aware, WTO is largely viewed as > just another means of US imperialism. pretty much like the UN - when was > the last time action against the states was called, say for invading a > souvereign nation without much reason? Recently I referred to the case of the Irish songwriters who won a case in the EU against the U.S. The EU has held the U.S. in restraint of trade and will consider sanctions against the U.S. if the U.S. loses the appeal. The case was caused by the 1998 U.S. Copyright Term Extension Act, which discriminates against the Irish songwriters because the act excludes U.S. bar and restaurant owners from having to pay royalties on any recorded music. In reality, there is no way that copyright law is going to be "normalized" worldwide, nor is there any such thing as "free trade." In fact, "intellectual property" has become just another item for trade negotiators to bargain over. As you can see, the artists and authors are excluded from the process. But that doesn't mean that nations smaller than the U.S. need always be bullied. I hate bullies, don't you? From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 28 22:14:55 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA22290 for dvd-discuss-outgoing; Mon, 28 Aug 2000 22:14:55 -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 WAA22286 for ; Mon, 28 Aug 2000 22:14:44 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id WAA12663 for dvd-discuss@eon.law.harvard.edu; Mon, 28 Aug 2000 22:24:32 -0400 Date: Mon, 28 Aug 2000 22:24:27 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] FCC: an outline Message-ID: <20000828222427.G11959@eldritchpress.org> References: <20000828162411.A3083@localhost> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <20000828162411.A3083@localhost>; from fenimore@roadrunner.com on Mon, Aug 28, 2000 at 04:24:11PM -0600 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I would add some more points, but I am hasty in suggesting them here. Please somebody try to help out to clean this up. The FCC authority stems from the well-recognized concept that the airwaves are owned by the public and a limited bandwidth resource that can and should be regulated. However, in regulating television display devices the FCC would greatly extend that mandate into regulation of the Internet and most of any computer communication. It is much too early to start regulating the Internet, if ever. And it would make a mockery of the term "personal" computer. The motion picture and music publishing industries might have some sort of limited monopoly under copyright law. But this monopoly to control copying should not be extended to a monopoly on access to ideas. In constrast, the Internet is not considered government-regulated public property in the same sense as the airwaves, it is not significantly resource-limited as the airwaves, and it will not degenerate into chaos unless carefully regulated by the FCC. In contrast to the airwaves, the Internet so far uses a peer-to-peer model of transmission, not a centralized broadcast from a producer to multicast clients. The movie studios and music publishers should not be granted a monopoly license on Internet content. These digital television displays can not only display movies as view on demand content from a central source. They would also serve as means to render and display digital video content no matter who produces it, or who owns the copyright. To grant a private cartel a monopoly here would be greatly injurious to the public good. On Mon, Aug 28, 2000 at 04:24:11PM -0600, Paul Fenimore wrote: > > > The next Federal Communications Commission meeting listed on this page > is Thursday, Sept. 14th, 2000 at 9:30 am. The information in the > cited document was last update June 15, 2000. Getting a comment > to the FCC at least a week ahead should (hopefully give them the > opportunity to read it and think. Anyone with a more current schedule > should post their info. > > Perhaps a joint submission by interested participants from this forum > is appropriate? > > Here is my stab at a consolidation of points made so far: > > (1) Digital ain't different. > (a) The issue is that conversion from digital to analog is cheap. > (i) The release format is irrelevant. > (ii) Digital works are not new: player piano, textual books. > (iii) Confusion between electronic transmission and digital > encodings. > (b) Digital works are already available. Examples. > (2) Imposition of so-called copy control will violate judicial precedent > federal statute and Congressional intent. > (a) Sony v. Universal ("Betamax" decision), paraphrase: "non-infringing > uses immunize devices and their makers from non-specific charges of > contributory infringement". > (b) Campbell v. Acuff-Rose ("2 Live Crew" Pretty Woman infringement > case.) "No bright lines" in determining fair use. Technological > measures are bright lines, and constitute an improper delegation > for determining sect. 107 fair use criteria. > (c) Nimmer: "a restrictive legend clearly does not restrict fair use". > (d) By analogy with 1201(k)(2), digital copy control should not apply > to digital broadcasts any more than macrovision applies to analog > broadcasts (i.e. not at all). > (e) Existing statutory basis for access control on broadcast under > 47 U.S.C. 553, 605 makes no pretense of extending to copy control. > (f) Senator Ashcroft specifically sought to insure that video-capture > cards operated when enacting DMCA (See Cong. Record), yet this > the outcome the FCC seeks is contrary to Sen. Ashcrofts intent. > (3) Large coypright owners are acting contrary to judicial precedent. > (a) : "Stop unauthorized, casual > copying of commercial entertainment content." Unauthorized is > not the same as illegal, "commercial entertainment content" is > not relevant to finding of infringement. This is an attempt to > abolish fair use as a constitutionally-mandated defense to > copyright infringement. > (b) : Ditto, more or less. > (c) Divx failed. Industry seeks to achieve by regulation what it > could not by competition in an open market. > > Conclusion: > The issue is not espcially whether the audience makes copies or not. It > is whether a few individuals engage in illegal activity by systematically > distributing without the authority of the copyright owner. The larger > the scale of this distribution, the easier it is to detect and litigate > under section 106. Anti-copying TPMs have no place in FCC digital > cable rules. -- "Eric" Eric Eldred Eldritch Press mailto:Eldred@EldritchPress.org http://www.eldritchpress.org/EricEldred.vcf From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 28 22:37:38 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA23264 for dvd-discuss-outgoing; Mon, 28 Aug 2000 22:37:38 -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 WAA23261 for ; Mon, 28 Aug 2000 22:37:37 -0400 Received: from ppp.anonymizer.com (c04-054.015.popsite.net [64.24.75.54]) by cyberpass.net (8.8.8/8.7.3) with ESMTP id TAA25461; Mon, 28 Aug 2000 19:40:04 -0700 (PDT) Message-Id: <4.3.2.7.2.20000828193430.00b56ee0@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, 28 Aug 2000 19:37:53 -0700 To: dvd-discuss@eon.law.harvard.edu, dvd-discuss@eon.law.harvard.edu From: "James S. Tyre" Subject: Re: [dvd-discuss] 3rd Party Speech Veto Unconsitutional -- Young v Simi Valley In-Reply-To: <20000828193143.27488.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 12:31 PM 8/28/2000 -0700, Bryan Taylor wrote: >I found a GREAT case decided 6/20/2000 that held a Simi Valley zoning >ordinence facially unconstitutional because it offered favored private >3rd parties an effective veto over certain forms of controversial >expression (topless dancing). This decision rocks! Did you happen to notice which law firm represented Simi Valley? (No big deal, but amusing anyway. Old habit, I always look at the judges and lawyers involved in a decision.) -------------------------------------------------------------------- James S. Tyre mailto:jstyre@jstyre.com 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 Aug 28 22:37:28 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA23256 for dvd-discuss-outgoing; Mon, 28 Aug 2000 22:37:28 -0400 Received: from mail.world-net.co.nz (mail.world-net.co.nz [203.96.119.27]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id WAA23253 for ; Mon, 28 Aug 2000 22:37:22 -0400 Received: from leopard.lan (nw3-70.world-net.co.nz [202.37.68.70]) by mail.world-net.co.nz (8.9.3/8.9.3) with SMTP id OAA14225 for ; Tue, 29 Aug 2000 14:34:06 +1200 From: Daniel Richards To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] MPA stopping paralell importing in NZ Date: Tue, 29 Aug 2000 14:33:23 +1200 X-Mailer: KMail [version 1.0.29.2] Content-Type: text/plain References: <00082823262303.13842@leopard.lan> <371lqssse19nth5n3qd5hqdr6f60vlh9id@4ax.com> In-Reply-To: <371lqssse19nth5n3qd5hqdr6f60vlh9id@4ax.com> MIME-Version: 1.0 Message-Id: <00082914350204.13842@leopard.lan> Content-Transfer-Encoding: 8bit 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, 29 Aug 2000, you wrote: > On Mon, 28 Aug 2000 23:20:13 +1200, Daniel Richards wrote: [snip] > But someone in, say, New Zealand might as well wait for another comet to > hit Jupiter than for a current Hollywood movie to arrive on his shores in DVD. > Perhaps there should be an injunction limiting Hollywood hype to appropriate > regions? Auctally, video stores are currently importing DVD's that havn't even come out in the cinema's here, of course this will only be for a few more months until thee MPA bullies the goverenment into making it illegal. But then, there's nothing stopping normal people from ordering them over the net from say amazon. -- "Your future has arrived, are you ready to go?" -----BEGIN PGP SIGNATURE----- Version: GnuPG v1.0.1 (GNU/Linux) Comment: For info see http://www.gnupg.org iD8DBQE5qyFdHxSqGAiQwxwRAjdwAJ973l/0tWwXQJisCF55VVs6mFrteQCdFcVf dPsOadqZHkQExTiGQgdeZ4Q= =WjIO -----END PGP SIGNATURE----- From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 28 22:38:35 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA23409 for dvd-discuss-outgoing; Mon, 28 Aug 2000 22:38:35 -0400 Received: from mta4.rcsntx.swbell.net (mta4.rcsntx.swbell.net [151.164.30.28]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id WAA23405 for ; Mon, 28 Aug 2000 22:38:34 -0400 Received: from swbell.net ([64.216.211.82]) by mta4.rcsntx.swbell.net (Sun Internet Mail Server sims.3.5.2000.01.05.12.18.p9) with ESMTP id <0G0100A7L862B8@mta4.rcsntx.swbell.net> for dvd-discuss@eon.law.harvard.edu; Mon, 28 Aug 2000 21:27:38 -0500 (CDT) Date: Mon, 28 Aug 2000 21:18:34 -0500 From: Jolley Subject: Re: [dvd-discuss] Code and assassins To: dvd-discuss@eon.law.harvard.edu Message-id: <39AB1D7A.8491748C@swbell.net> Organization: Southwestern Bell Internet Services MIME-version: 1.0 X-Mailer: Mozilla 4.72 [en]C-SBI-NC472 (Win98; U) Content-type: text/plain; charset=us-ascii Content-transfer-encoding: 7bit X-Accept-Language: en References: <79.8e9ade8.26dc6f4d@cs.com> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Consilgere@cs.com wrote: > > > K>Its expressive element no more immunizes its functional > > K>aspects from regulation than the expressive motives of an assassin > > K>immunize the assassin's action. > > > Kaplan would therefore ban firearms training manuals. Would it be a > > crime to point out that if the president's convertilbe motorcade > > proceeds as planned down the parade route that he will be vulnerable to > > an assassin located in the book repository? > > Not the way I read it. He seems to be saying it would be illegal to build a > robot that would shoot the President from the book depository, and whether > you built it to make that point known is irrelevant. And there is statute > law on the books that backs forbidding the ownership of such a robot. So, is he saying that it is legal to own a training manual on how to build DeCSS and illegal to own DeCSS? From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 28 22:50:47 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA23749 for dvd-discuss-outgoing; Mon, 28 Aug 2000 22:50:47 -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 WAA23745 for ; Mon, 28 Aug 2000 22:50:46 -0400 Received: from ip121.bedford2.ma.pub-ip.psi.net ([38.32.10.121]) by relay20.smtp.psi.net with smtp (Exim 3.13 #3) id 13TbUU-0005fZ-00 for dvd-discuss@eon.law.harvard.edu; Mon, 28 Aug 2000 22:51:11 -0400 From: Ron Gustavson To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] MPA stopping paralell importing in NZ Date: Mon, 28 Aug 2000 22:53:17 -0400 Message-ID: References: <00082823262303.13842@leopard.lan> <371lqssse19nth5n3qd5hqdr6f60vlh9id@4ax.com> <00082914350204.13842@leopard.lan> In-Reply-To: <00082914350204.13842@leopard.lan> 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 WAA23746 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, 29 Aug 2000 14:33:23 +1200, Daniel Richards wrote: >Auctally, video stores are currently importing DVD's that havn't even come out >in the cinema's here, of course this will only be for a few more months until >thee MPA bullies the goverenment into making it illegal. Are the new titles region 4? Also are most Australian films coming out as region 4 or region 0? >But then, there's nothing stopping normal people from ordering them over the >net from say amazon. Shhhhhh. __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Mon Aug 28 23:21:40 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA24114 for dvd-discuss-outgoing; Mon, 28 Aug 2000 23:21:40 -0400 Received: from smtp03.primenet.com (smtp03.primenet.com [206.165.6.133]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id XAA24111 for ; Mon, 28 Aug 2000 23:21:31 -0400 Received: (from daemon@localhost) by smtp03.primenet.com (8.9.3/8.9.3) id UAA16064 for ; Mon, 28 Aug 2000 20:20:46 -0700 (MST) Received: from sessions.phx.primenet.com(206.132.239.114), claiming to be "heorot.lumbercartel.com" via SMTP by smtp03.primenet.com, id smtpdAAAX6aqsF; Mon Aug 28 20:20:36 2000 Received: from frankenstein.lumbercartel.com (IDENT:dcs@frankenstein.lumbercartel.com [192.168.6.2]) by heorot.lumbercartel.com (8.9.3/8.8.7) with SMTP id UAA05912 for ; Mon, 28 Aug 2000 20:21:40 -0700 From: "D. C. Sessions" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] The US v O'Brien standard Date: Mon, 28 Aug 2000 20:18:00 -0700 X-Mailer: KMail [version 1.0.29] Content-Type: text/plain References: <20000828191759.17226.qmail@web509.mail.yahoo.com> <20000828213223.D11959@eldritchpress.org> In-Reply-To: <20000828213223.D11959@eldritchpress.org> MIME-Version: 1.0 Message-Id: <00082820201600.02854@frankenstein.lumbercartel.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, 28 Aug 2000, Eric Eldred wrote: > On Mon, Aug 28, 2000 at 12:17:59PM -0700, Bryan Taylor wrote: > > > > --- John Schulien wrote: > > > > A law prohibiting destruction of Selective Service > > > > certificates no more abridges free speech on its face than a > > > > motor vehicle law prohibiting the destruction of drivers' > > > > licenses, or a tax law prohibiting the destruction of books > > > > and records. [391 U.S. 367, 376] > > > > > Burning a draft card is, in essence, a symbolically > > > and functionally revolutionary act. Burning a draft > > > card is destroying a part of the governmental > > > machinery that enables selective service. It is tearing > > > down the small piece of government that you are > > > forced to carry with you. > > > > Kaplan would have banned O'Brien from issuing flyers to his protest and > > from describing his method: "Take draft card, add flame". > > > > There are 5 steps involved in using software to do a functional task: > > 1. Write source code > > 2. Compile into object code > > 3. Distribute the software [either as source or object or both] > > 4. Install the software on a specific compatible computer > > 5. Execute the software > > > > Only step 5 represents "conduct". Maybe 4 is grey. Since software is a > > 'literary work' and websites are members of the press, item 3 is > > "conduct" about as much as vibrating your vocal cords or scratching > > your pen on a page is. > > And isn't Kaplan confusing 3 with 5 here? He seems to think there is something > magical about clicking on some link, and either automatically downloading > software, or instead going to a text page that has the text on it, or some > other textual material. Whether or not the program is downloaded as binary or > source has nothing to do with automatically converting 3 into 5--the user still > has to execute the program; all it means is that the source might need to be > complied--or translated, like a Java program, and this can be done on the > fly--but in neither case involuntarily by user. > > Somehow I believe Kaplan has failed to understand the whole principles of > software and computers, and is grossly contorting reality to fit his logic. It > is very important he be set straight now. You still don't get it. This isn't about circumvention, it's about circumvention devices. So what if the device has to be brought into the building, removed from the box, connected to power and the display, have a DVD inserted, etc.? These don't change the fact that the device itself exists to circumvent. -- | Engineers solve problems -- it's what we do. | | Do you want to be a problem? | | D. C. Sessions === dcs@lumbercartel.com | From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 29 00:00:38 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA24316 for dvd-discuss-outgoing; Tue, 29 Aug 2000 00:00:38 -0400 Received: from attila.stevens-tech.edu (khockenb@attila.stevens-tech.edu [155.246.14.11]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id AAA24313 for ; Tue, 29 Aug 2000 00:00:37 -0400 Received: from localhost (khockenb@localhost) by attila.stevens-tech.edu (8.9.3/8.9.3/7) with ESMTP id AAA3378343 for ; Tue, 29 Aug 2000 00:01:01 -0400 (EDT) Date: Tue, 29 Aug 2000 00:01:01 -0400 From: Kurt Hockenbury To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] A question on copyright and free presses. In-Reply-To: <200008290323.XAA24210@eon.law.harvard.edu> Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Something has bothered me about ruling on source code vs. freedom of speech/press. I recently put my finger on it. The copyright office web site states (at http://www.loc.gov/copyright/circs/circ1.html): WHAT IS COPYRIGHT? Copyright is a form of protection provided by the laws of the United States (title 17, U.S. Code) to the authors of original works of authorship, including literary, dramatic, musical, artistic, and certain other intellectual works. My question is, how can anything that is capable of being copyrighted not be covered by freedom of the press? Are there any examples of things that are copyrighted but not covered under the first amendment? There are easily things that are covered by the first amendment, that are not copyrightable (improvisational speeches that have not been written or recorded, for instance). But to say that an "original work of authorship" wouldn't be covered by the first amendment seems wrong in my eyes. Am I totally off base here? If not, what is the answer? If souce code isn't covered by the 1st amendment, should source code be eligible for copyright status (would it still be considered a work of authorship?) Much thanks, -Kurt Hockenbury From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 29 00:19:29 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA24491 for dvd-discuss-outgoing; Tue, 29 Aug 2000 00:19:29 -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 AAA24486 for ; Tue, 29 Aug 2000 00:19:16 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id AAA12766 for dvd-discuss@eon.law.harvard.edu; Tue, 29 Aug 2000 00:29:05 -0400 Date: Tue, 29 Aug 2000 00:29:00 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] The US v O'Brien standard Message-ID: <20000829002900.H11959@eldritchpress.org> References: <20000828191759.17226.qmail@web509.mail.yahoo.com> <20000828213223.D11959@eldritchpress.org> <00082820201600.02854@frankenstein.lumbercartel.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <00082820201600.02854@frankenstein.lumbercartel.com>; from dcs@mailhost.lumbercartel.com on Mon, Aug 28, 2000 at 08:18:00PM -0700 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Mon, Aug 28, 2000 at 08:18:00PM -0700, D. C. Sessions wrote: > On Mon, 28 Aug 2000, Eric Eldred wrote: > >... > > And isn't Kaplan confusing 3 with 5 here? He seems to think there is something > > magical about clicking on some link, and either automatically downloading > > software, or instead going to a text page that has the text on it, or some > > other textual material. Whether or not the program is downloaded as binary or > > source has nothing to do with automatically converting 3 into 5--the user still > > has to execute the program; all it means is that the source might need to be > > complied--or translated, like a Java program, and this can be done on the > > fly--but in neither case involuntarily by user. > > > > Somehow I believe Kaplan has failed to understand the whole principles of > > software and computers, and is grossly contorting reality to fit his logic. It > > is very important he be set straight now. > > You still don't get it. This isn't about circumvention, it's about circumvention > devices. So what if the device has to be brought into the building, > removed from the box, connected to power and the display, have a DVD inserted, > etc.? These don't change the fact that the device itself exists to circumvent. Good point. One has to consider if there is any difference between a "device" that is expressed in an Australian song, and a "device" that is a black box that you have to bring.... (We have considered that at length.) But what I am referring to here is the distinction that Kaplan seems to have lost, between talking about the "device," and the "device" itself. Somehow he has fixed on the fact that the device decrypts, that this is somehow embodied in something that a computer does, and that consequently banning all speech based on content about decryption is equivalent to banning distribution of all devices. He seems to justify this by stating that all computer speech (object code, but any equivalent) is purely functional, thus all distribution is the same as "trafficking" which is the same as actually using the code to decrypt, access, illegally copy. Thus his strange idea that in selecting a hyperlink it is all important whether the selection downloads code, or simply presents a text page. What I am saying is that Kaplan not only misunderstands the nature of hyperlinks and the Internet and source code. But also I assert that Kaplan misunderstands how computers work. In his logic there is a magic leap between "distribution" and "execution." In fact, he has to believe this, otherwise he could not ban this whole class of speech based on content. (And his "disease" metaphor could also be explained by a similar faulty analogy with talking about code being the same thing as issuing a computer virus being the same thing as a terrorist releasing anthrax germs--what amounts to a "category mistake" again.) While if one stops to think about it, there always has to be the intervention of the human user--and that introduces intent, motivation, and other acts which go beyond the mere speech act to convert it, if that actually happens, into a functional act. For Kaplan's logic to work, he has to make some magic leap to bypass the user (and the facts about actual circumvention), and his acute mind jumps to the conclusion that his logic is based on computer science instead of a faulty theory in his own brain. One could conclude that some piece of source code could never be a "device" that circumvents. Or one could simply conclude that the whole statute is faulty in trying to regulate speech acts by assuming that computer code is always functional, by assuming that talking about devices is the same thing as distributing devices, and by thinking that distributing information is the same thing as acting in some way illegally on the basis of the information. I prefer the latter conclusion. Under it, it is not necessary to believe that all computer code is protected speech, only that one must not think that computer code does anything magic that is different from other speech. And so it has to be judged the same way, in light of the facts and the law. From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 29 00:53:19 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA24687 for dvd-discuss-outgoing; Tue, 29 Aug 2000 00:53:19 -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 AAA24684 for ; Tue, 29 Aug 2000 00:53:18 -0400 Received: from ip15.bedford2.ma.pub-ip.psi.net ([38.32.10.15]) by relay21.smtp.psi.net with smtp (Exim 3.13 #3) id 13TdP3-0007GY-00 for dvd-discuss@eon.law.harvard.edu; Tue, 29 Aug 2000 00:53:41 -0400 From: Ron Gustavson To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] The US v O'Brien standard Date: Tue, 29 Aug 2000 00:55:43 -0400 Message-ID: References: <20000828191759.17226.qmail@web509.mail.yahoo.com> <20000828213223.D11959@eldritchpress.org> <00082820201600.02854@frankenstein.lumbercartel.com> <20000829002900.H11959@eldritchpress.org> In-Reply-To: <20000829002900.H11959@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 AAA24685 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, 29 Aug 2000 00:29:00 -0400, Eric Eldred wrote: >One could conclude that some piece of source code could >never be a "device" that circumvents. Or one could >simply conclude that the whole statute is faulty in >trying to regulate speech acts by assuming that computer >code is always functional, by assuming that talking about >devices is the same thing as distributing devices, and by >thinking that distributing information is the same thing as >acting in some way illegally on the basis of the information. >I prefer the latter conclusion. Under it, it is not >necessary to believe that all computer code is protected >speech, only that one must not think that computer code >does anything magic that is different from other speech. >And so it has to be judged the same way, in light of >the facts and the law. Do we live in a society where we are judged by our actions, or is our potential for each and every action to be proscribed and delineated in advance by a growing cluster of third party interest groups? It's a short trip from outlawing DeCSS, to outlawing PCs. When appliances exist that do what 90% of people use PCs for, perhaps only certified encryption engineers will be qualified to have a PC outside of the office. [You know, this might not be so bad after all...] Was writing the Melissa virus illegal, or just sending it? Would just thinking the virus be illegal? Nobody made Schumann click the link to DeCSS, nor did anyone mail it to him. What he did was more like order it from an overseas store. If it is illegal to import this code, take it to US Customs. They do such a good job with Cuban cigars, I'm sure they will find a way to stamp out the infernal exe. __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 29 01:20:31 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id BAA25764 for dvd-discuss-outgoing; Tue, 29 Aug 2000 01:20:31 -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 BAA25761 for ; Tue, 29 Aug 2000 01:20:25 -0400 Received: from sites.inka.de (puric.inka.de [212.227.14.17]) by mail.inka.de with esmtp id 13TdpJ-0005oy-00; Tue, 29 Aug 2000 07:20:49 +0200 Received: from localhost by sites.inka.de with local id 13TdpL-0002bq-00; Tue, 29 Aug 2000 07:20:51 +0200 Date: Tue, 29 Aug 2000 07:20:51 +0200 From: Sham Gardner To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] New software to challenge CSS is copy protection Message-ID: <20000829072050.A9986@inka.de> References: <000c01c0113d$2d042ee0$87ce0593@ia.nsc.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0i In-Reply-To: ; from olc@cs.umass.edu on Mon, Aug 28, 2000 at 06:45:42PM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Mon, Aug 28, 2000 at 06:45:42PM -0400, Ole Craig wrote: > While a cryptographic attack may be possible on the title key also, > TTBOMK that wasn't discussed. > > Encrypted VOBs are accessible under some circumstances, yes -- > it's the title key with which they are encrypted that's not readily > available. DeCSSplus does just that. It's mirrored at the site in my .sig. It's possible there are some VOB files for which it would fail to find the key, but I haven't yet come acress one. Sham -- http://sites.inka.de/risctaker/DeCSS/ "The first speech censored, the first thought forbidden, the first freedom denied, chains us all irrevocably." (Jean-Luc Picard) From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 29 01:23:40 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id BAA25870 for dvd-discuss-outgoing; Tue, 29 Aug 2000 01:23:40 -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 BAA25867 for ; Tue, 29 Aug 2000 01:23:39 -0400 Received: from localhost (jerwin@localhost) by osf1.gmu.edu (8.8.8/8.8.8) with ESMTP id BAA26068 for ; Tue, 29 Aug 2000 01:24:04 -0400 (EDT) Date: Tue, 29 Aug 2000 01:24:04 -0400 (EDT) From: Jeremy A Erwin To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] (fwd) ALERT: FCC considers restricting digital In-Reply-To: <200008282045.QAA27378@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 Mon, 28 Aug 2000, Robert S. Thau wrote: > Paul Fenimore writes: > > 1. Partly, they believe their own rhetoric. "Piracy" prior to about 1900 was > > a word reserved for murderers, rapists, people who burned occupied ships > > at sea, etc. No more. > > Hmmm... I used to be sure of this, but the Atlantic article on the > music industry at least *seems* to have citations of "piracy" meaning > illicit publication from around the turn of the century: > http://www.theatlantic.com/cgi-bin/o/issues/2000/09/mann.htm > It's not particularly well sourced though, and some of them may be > anachronisms (though "the London pirate king" is deceptive if so --- > the word is in quotes). Although I iniatially suspected that "the London pirate king" was called by that title in a reference to Gilbert & Sullivan's "Pirates of Penzance", the OED indicates that this term is much older. (Oxford English Dictionary, 2nd Edition) " 4. fig. a. One who appropriates or reproduces without leave, for his own benefit, a literary, artistic, or musical composition, or an idea or invention of another, or, more generally, anything that he has no right to; esp. one who infringes on the copyright of another. 1668 J. Hancock Brooks' String of Pearls (Notice at end), Some dishonest Booksellers, called Land-Pirats, who make it their practise to steal Impressions of other mens Copies. 1701 De Foe True-born Eng. Explan. Pref. (1703) 6 Its being Printed again and again by Pyrates. 1709 Steele & Addison Tatler No. 101 P1 These Miscreants are a Set of Wretches we Authors call Pirates, who print any Book,..a soon as it appears.., in a smaller Volume, and sell it (as all other Thieves do stolen Goods) at a cheaper Rate. 1837 Lockhart Scott lvii. (1839) VII. 117 A recent alarm about one of Ballantyne's workmen..transmitting proof sheets of Peveril while at press to some American pirate. 1861 W. Fairbairn Address Brit. Assoc., There are abuses in the working of the patent law.., and protection is often granted to pirates and impostors, to the detriment of real inventors. 1887 Shakespeariana VI. 105 In 1599 two of them [Shakspere's Sonnets] were printed by the pirate Jaggard. " To give a sense of perspective, William Kidd was executed in 1701 and Edward Teach was killed in 1718. Jeremy Erwin From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 29 01:26:48 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id BAA25913 for dvd-discuss-outgoing; Tue, 29 Aug 2000 01:26:48 -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 BAA25910 for ; Tue, 29 Aug 2000 01:26:47 -0400 Received: from sites.inka.de (puric.inka.de [212.227.14.17]) by mail.inka.de with esmtp id 13TdvT-0005xP-00; Tue, 29 Aug 2000 07:27:11 +0200 Received: from localhost by sites.inka.de with local id 13TdvV-0002d6-00; Tue, 29 Aug 2000 07:27:13 +0200 Date: Tue, 29 Aug 2000 07:27:13 +0200 From: Sham Gardner To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] New software to challenge CSS is copy protection Message-ID: <20000829072713.B9986@inka.de> References: <000c01c0113d$2d042ee0$87ce0593@ia.nsc.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0i In-Reply-To: <000c01c0113d$2d042ee0$87ce0593@ia.nsc.com>; from john.zulauf@ia.nsc.com on Mon, Aug 28, 2000 at 04:13:21PM -0600 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I'd replied to Ole's post before reading this one. On Mon, Aug 28, 2000 at 04:13:21PM -0600, John Zulauf wrote: > I propose a new software player or CSS decrypter be constructed with the > following properties: > > Please edit and enlarge this rough spec, the notes, questions, and comments. > > (1) Required inputs > (1.1)The encrypted .VOB files > (1.2)The encrypted keys from the DVD (whichever are necessary) It's the title keys which are needed here, one for each VOB file. However, DeCSSplus, which seems to have appeared within the last few weeks manages to do exactly what you suggest here *without* the need for the title keys to be input. It is able to determine them by "guessing" several bytes of plaintext using the contents of unencrypted sectors preceding it, and then using Frank Stevenson's 2^16 attack. > (2) Required outputs > (2.1a)The decrypted .VOB files > (2.1b)Playback of the .VOB files (with no clear text hard disk copy) It doesn't do b), but does come with the complete source, so could easily be modified to do so. Sham -- http://sites.inka.de/risctaker/DeCSS/ "The first speech censored, the first thought forbidden, the first freedom denied, chains us all irrevocably." (Jean-Luc Picard) From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 29 01:44:34 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id BAA25977 for dvd-discuss-outgoing; Tue, 29 Aug 2000 01:44:34 -0400 Received: from dial77.roadrunner.com (sf-du77.cybermesa.com [209.12.75.77]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id BAA25974 for ; Tue, 29 Aug 2000 01:44:32 -0400 Received: (from paul@localhost) by dial77.roadrunner.com (8.8.7/8.8.7) id XAA00680 for dvd-discuss@eon.law.harvard.edu; Mon, 28 Aug 2000 23:46:28 -0600 Date: Mon, 28 Aug 2000 23:46:28 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] 3rd Party Speech Veto Unconsitutional -- Young v Simi Valley Message-ID: <20000828234627.A558@localhost> References: <20000828193143.27488.qmail@web515.mail.yahoo.com> <20000828215213.E11959@eldritchpress.org> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <20000828215213.E11959@eldritchpress.org>; from eldred@eldritchpress.org on Mon, Aug 28, 2000 at 09:52:13PM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I'm not trying to distract from the direction Bryan is going here (1201 is facially unconstitutional for banning DeCSS), but I think in this context it is worth pointing out that the direct effect of 1201 on the "protected" work also raises some serious consitutional issues, already mentioned long ago in this forum. On Mon, Aug 28, 2000 at 09:52:13PM -0400, Eric Eldred wrote: [ ... ] > In many ways, Corley is a classic case under the Statute of Anne, > where copyright law all began! The new publishers under this > statute after 1709/1710 were sued by the old ones, who had > been licensed by the Crown. It took many years before these > cases were settled, and the result, partially, was the Copyright > Clause in the U.S. Constitution. [ ... ] The Statute of Anne is the start of "modern" copyright, meaning copyright claiming to promote learning, rather than the _original_ use of copyright by the English Crown. The original use was as the instrument of a divide-and-conquer strategy, the aim of which was to get the English publishing industry to cooperate with the official censorship. Printers who cooperated with the official censorship got the carrot of copyright (including copyright on texts from antiquity); those who refused censorship got the stick, both from the Crown and their fellow printers who had monopolies to defend. What follows in carefully considered. It is the reason I'm here. Kaplan's use of the word "consent," and other things he has to say, are the first substantive step away from a right to read published works. If upheld, "consent," the patent-like nature of 1201, the prior restraint of research, are in my opinion the death of copyright as found in the Statute of Anne. The promotion of progress will only happen if the copyright owner permits it. The point I want to reiterate is that several lines of argument lead to the conclusion that s.1201, as interpreted, _suppresses_ progress in the useful arts and science. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 29 02:19:00 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id CAA26176 for dvd-discuss-outgoing; Tue, 29 Aug 2000 02:19:00 -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 CAA26173 for ; Tue, 29 Aug 2000 02:18:57 -0400 Received: (from paul@localhost) by dial215.roadrunner.com (8.8.7/8.8.7) id AAA00961 for dvd-discuss@eon.law.harvard.edu; Tue, 29 Aug 2000 00:20:54 -0600 Date: Tue, 29 Aug 2000 00:20:53 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] A question on copyright and free presses. Message-ID: <20000829002052.B558@localhost> References: <200008290323.XAA24210@eon.law.harvard.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: ; from khockenb@stevens-tech.edu on Tue, Aug 29, 2000 at 12:01:01AM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, Aug 29, 2000 at 12:01:01AM -0400, Kurt Hockenbury wrote: > Something has bothered me about ruling on source code vs. freedom of > speech/press. I recently put my finger on it. > > The copyright office web site states > (at http://www.loc.gov/copyright/circs/circ1.html): > > WHAT IS COPYRIGHT? > > Copyright is a form of protection provided by the laws of the United > States (title 17, U.S. Code) to the authors of original works of > authorship, including literary, dramatic, musical, artistic, and > certain other intellectual works. > > My question is, how can anything that is capable of being copyrighted not > be covered by freedom of the press? Are there any examples of things that > are copyrighted but not covered under the first amendment? The words someone else wrote are copyrighted, and you have no First Amendment right to re-print them before their entry into the public domain. HARPER & ROW v. NATION ENTERPRISES, 471 U.S. 539 (1985). >From the *holding*: [ ... ] (c) In view of the First Amendment's protections embodied in the Act's ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^ distinction between copyrightable expression and uncopyrightable ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^ facts and ideas, and the latitude for scholarship and comment ^^^^^^^^^^^^^^^ traditionally afforded by fair use, there is no warrant for expanding, as respondents contend should be done, the fair use doctrine to what amounts to a public figure exception to copyright. Whether verbatim copying from a public figure's manuscript in a given case is or is not fair must be judged according to the traditional equities of fair use. Pp. 555-560. [ ... ] The notion that ideas are "free as the air" is supposed to protect the First Amendment. In cases where ideas are inextricably connected to the particular expression, something called the merger doctrine removes copyright protection from the particular expression. The classic example of this is, I believe, one of the Mai Lai massacre photographs. > There are easily things that are covered by the first amendment, that are > not copyrightable (improvisational speeches that have not been written or > recorded, for instance). But to say that an "original work of authorship" > wouldn't be covered by the first amendment seems wrong in my eyes. The reason is that both the First Amendment and the Copyright Clause are of constitutional provisions. In the same way that the First does not grant a right copy to the copyrighted works of another, the Copyright Clause cannot (in theory, the SDNY court is giving us a lesson on why it thinks this statement is wrong) be used to abolish or evicerate the First. > Am I totally off base here? If not, what is the answer? These are very sensible questions. They are very important questions. > If souce code isn't covered by the 1st amendment, should source code be > eligible for copyright status (would it still be considered a work of > authorship?) Yes, computer programs would still probably qualify for copyright even if they are not protected by the First. Here is a quote from an exchange between Bryan Taylor and Peter Junger on April 19th, 2000: [ Bryan ] : If you say that source code : and/or object code aren't expressive, wouldn't that invalidate every software : copyright out there? [ Peter ] The trouble is that the meaning of ``expressive'' may differ in copyright law and in the law of the First Amendment. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 29 02:38:30 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id CAA26484 for dvd-discuss-outgoing; Tue, 29 Aug 2000 02:38:30 -0400 Received: from orange.fenimore.org (sf-du215.cybermesa.com [209.12.75.215]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id CAA26481 for ; Tue, 29 Aug 2000 02:38:13 -0400 Received: (from paul@localhost) by orange.fenimore.org (8.8.7/8.8.7) id AAA00981 for dvd-discuss@eon.law.harvard.edu; Tue, 29 Aug 2000 00:40:11 -0600 Date: Tue, 29 Aug 2000 00:40:11 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] SDNY opinion, how DeCSS *doesn't* work, was: US v. O'Brien Message-ID: <20000829004010.C558@localhost> References: <20000828191759.17226.qmail@web509.mail.yahoo.com> <20000828213223.D11959@eldritchpress.org> <00082820201600.02854@frankenstein.lumbercartel.com> <20000829002900.H11959@eldritchpress.org> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <20000829002900.H11959@eldritchpress.org>; from eldred@eldritchpress.org on Tue, Aug 29, 2000 at 12:29:00AM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, Aug 29, 2000 at 12:29:00AM -0400, Eric Eldred wrote: > On Mon, Aug 28, 2000 at 08:18:00PM -0700, D. C. Sessions wrote: [ ... ] > > You still don't get it. This isn't about circumvention, it's > > about circumvention > > devices. So what if the device has to be brought into > > the building, > > removed from the box, connected to power and the display, have a > > DVD inserted, > > etc.? These don't change the fact that the device itself exists > > to circumvent. > > Good point. One has to consider if there is any difference > between a "device" that is expressed in an Australian song, > and a "device" that is a black box that you have to bring.... > (We have considered that at length.) > > But what I am referring to here is the distinction that Kaplan > seems to have lost, between talking about the "device," and > the "device" itself. Somehow he has fixed on the fact that > the device decrypts, that this is somehow embodied in something > that a computer does, and that consequently banning all speech > based on content about decryption is equivalent to banning > distribution of all devices. He seems to justify this by > stating that all computer speech (object code, but any > equivalent) is purely functional, thus all distribution is > the same as "trafficking" which is the same as actually using > the code to decrypt, access, illegally copy. Thus his strange > idea that in selecting a hyperlink it is all important whether > the selection downloads code, or simply presents a text page. > > What I am saying is that Kaplan not only misunderstands the > nature of hyperlinks and the Internet and source code. But > also I assert that Kaplan misunderstands how computers work. > In his logic there is a magic leap between "distribution" > and "execution." In fact, he has to believe this, otherwise he > could not ban this whole class of speech based on content. > (And his "disease" metaphor could also be explained by > a similar faulty analogy with talking about code being > the same thing as issuing a computer virus being the > same thing as a terrorist releasing anthrax germs--what > amounts to a "category mistake" again.) Not only does Kaplan demonstrate a failure of grasp how a computer works, but he provides clear evidence that he has no idea how DeCSS or DOD or a CCA-licensed CSS implementation works. Universal v. Reimerdes, SDNY decision opinion, page 19: I.E. The Distribution of DeCSS [ ... ] A few other applications said to decrypt CSS-encrypted DVDs also have appeared on the Internet [ Bzzzt. Wrong answer. Thank you for playing. Don't I wish it was this easy. ] FN 82: (Stevenson) at 217-18, 226-29; (Schumann) at 290, 338-41; (Jacobsen) at 641; (Reider) at 681-85. One, DOD (Drink or Die) Speed Ripper, does not work with all DVDs that DeCSS will decrypt. Id.; Ex. CS, at S10011, Ex. 9. Some of these programs perfom only a portion of what DeCSS does and must be used in conjunction with others in order to decrypt the contents of a DVD. Tr. (Schumann) at 290, 338-39. Some of defendants' claims about these other means proved baseless at trial. See Tr. (Pavlovitch) at 965-68. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 29 02:50:01 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id CAA26586 for dvd-discuss-outgoing; Tue, 29 Aug 2000 02:50:01 -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 CAA26583 for ; Tue, 29 Aug 2000 02:49:59 -0400 Received: (from paul@localhost) by dial140.roadrunner.com (8.8.7/8.8.7) id AAA01156 for dvd-discuss@eon.law.harvard.edu; Tue, 29 Aug 2000 00:51:22 -0600 Date: Tue, 29 Aug 2000 00:51:21 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] origin of "pirate", was: (fwd) ALERT: FCC considers restricting digital Message-ID: <20000829005121.D558@localhost> References: <200008282045.QAA27378@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 jerwin@osf1.gmu.edu on Tue, Aug 29, 2000 at 01:24:04AM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I stand corrected. Thanks for looking this up. On Tue, Aug 29, 2000 at 01:24:04AM -0400, Jeremy A Erwin wrote: > On Mon, 28 Aug 2000, Robert S. Thau wrote: > > > Paul Fenimore writes: > > > 1. Partly, they believe their own rhetoric. "Piracy" prior to > > > about 1900 was a word reserved for murderers, rapists, people > > > who burned occupied ships at sea, etc. No more. > > > > Hmmm... I used to be sure of this, but the Atlantic article on the > > music industry at least *seems* to have citations of "piracy" meaning > > illicit publication from around the turn of the century: > > http://www.theatlantic.com/cgi-bin/o/issues/2000/09/mann.htm > > It's not particularly well sourced though, and some of them may be > > anachronisms (though "the London pirate king" is deceptive if so --- > > the word is in quotes). > > Although I iniatially suspected that "the London pirate king" was called > by that title in a reference to Gilbert & Sullivan's "Pirates of > Penzance", the OED indicates that this term is much older. > > (Oxford English Dictionary, 2nd Edition) > " > 4. fig. > > > a. One who appropriates or reproduces without leave, for his own benefit, > a literary, artistic, or musical composition, or an idea or invention of > another, or, more generally, anything that he has no right to; esp. one > who infringes on the copyright of another. > > > 1668 J. Hancock Brooks' String of Pearls (Notice at end), Some dishonest > Booksellers, called Land-Pirats, who make it their practise to steal > Impressions of other mens Copies. > 1701 De Foe True-born Eng. Explan. Pref. (1703) 6 Its being Printed again > and again by Pyrates. > 1709 Steele & Addison Tatler No. 101 P1 These Miscreants are a Set of > Wretches we Authors call Pirates, who print any Book,..a soon as it > appears.., in a smaller Volume, and sell it (as all other Thieves do > stolen Goods) at a cheaper Rate. > 1837 Lockhart Scott lvii. (1839) VII. 117 A recent alarm about one of > Ballantyne's workmen..transmitting proof sheets of Peveril while at press > to some American pirate. > 1861 W. Fairbairn Address Brit. Assoc., There are abuses in the working of > the patent law.., and protection is often granted to pirates and > impostors, to the detriment of real inventors. > 1887 Shakespeariana VI. 105 In 1599 two of them [Shakspere's Sonnets] were > printed by the pirate Jaggard. > " > > To give a sense of perspective, William Kidd was executed in 1701 and > Edward Teach was killed in 1718. Poorly paraphrased: It's not the things that y'a don't know, its the things that you think are so, but ain't. From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 29 03:57:01 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id DAA26781 for dvd-discuss-outgoing; Tue, 29 Aug 2000 03:57:01 -0400 Received: from mail.lemuria.org (lemuria.borgfelde.ricardo.de [195.244.103.65]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id DAA26777 for ; Tue, 29 Aug 2000 03:56:59 -0400 Received: from lemuria.org by mail.lemuria.org via rsmtp with bsmtp id for ; Tue, 29 Aug 2000 09:53:53 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Received: by lemuria.org via sendmail with stdio id for dvd-discuss@eon.law.harvard.edu; Tue, 29 Aug 2000 09:42:11 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Date: Tue, 29 Aug 2000 09:42:11 +0200 From: Tom Vogt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] New software to challenge CSS is copy protection Message-ID: <20000829094211.B13562@lemuria.org> References: <000c01c0113d$2d042ee0$87ce0593@ia.nsc.com> <20000829072713.B9986@inka.de> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0pre3i In-Reply-To: <20000829072713.B9986@inka.de> X-Privacy: If you can, please encrypt your mails - finger for key Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Sham Gardner wrote: > DeCSSplus, which seems to have appeared within the last few weeks manages to > do exactly what you suggest here *without* the need for the title keys to be > input. It is able to determine them by "guessing" several bytes of plaintext one nit to pick: DeCSS plus was first published (to the best of my recollection) on my site on July 18. -- "The net treats censorship as a malfunction and re-routes around it." (John Gilmore) From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 29 03:56:58 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id DAA26772 for dvd-discuss-outgoing; Tue, 29 Aug 2000 03:56:58 -0400 Received: from mail.lemuria.org (lemuria.borgfelde.ricardo.de [195.244.103.65]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id DAA26769 for ; Tue, 29 Aug 2000 03:56:56 -0400 Received: from lemuria.org by mail.lemuria.org via rsmtp with bsmtp id for ; Tue, 29 Aug 2000 09:53:53 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Received: by lemuria.org via sendmail with stdio id for dvd-discuss@eon.law.harvard.edu; Tue, 29 Aug 2000 09:26:50 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Date: Tue, 29 Aug 2000 09:26:50 +0200 From: Tom Vogt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] (fwd) ALERT: FCC considers restricting digital Message-ID: <20000829092650.A13562@lemuria.org> References: <39AA61CE.49277094@travel-net.com> <00082809134500.01422@frankenstein.lumbercartel.com> <39AA96A6.EB2EE452@mit.edu> <39AAFFB7.421B5014@swbell.net> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0pre3i In-Reply-To: <39AAFFB7.421B5014@swbell.net> X-Privacy: If you can, please encrypt your mails - finger for key Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Jolley wrote: > Perhaps we > should organize a "consumer protection group" to bring this to the > attention of the MPAA's enemies (their pirate customers.) We can > create a nifty little logo similar to the way Intel had an "Intel > inside" logo. Our logo would be heavily advertised and only allowed > on content that does not restrict a consumer from actually making > fair use of the content. all for it. I'm not rich, but I can offer free webhosting for this project, including mailing lists and whatever else is needed. -- "The net treats censorship as a malfunction and re-routes around it." (John Gilmore) From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 29 09:26:59 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA28458 for dvd-discuss-outgoing; Tue, 29 Aug 2000 09:26:59 -0400 Received: from hotmail.com (f192.law9.hotmail.com [64.4.9.192]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id JAA28455 for ; Tue, 29 Aug 2000 09:26:57 -0400 Received: from mail pickup service by hotmail.com with Microsoft SMTPSVC; Tue, 29 Aug 2000 06:26:52 -0700 Received: from 128.244.34.133 by lw9fd.law9.hotmail.msn.com with HTTP; Tue, 29 Aug 2000 13:26:51 GMT X-Originating-IP: [128.244.34.133] From: "Harold Eaton" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Code and assassins Date: Tue, 29 Aug 2000 09:26:51 EDT Mime-Version: 1.0 Content-Type: text/plain; format=flowed Message-ID: X-OriginalArrivalTime: 29 Aug 2000 13:26:52.0147 (UTC) FILETIME=[CADE6430:01C011BC] Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Consilgere wrote: >Not the way I read it. He seems to be saying it would be >illegal to build a robot that would shoot the President could >from the book depository, and whether you built it to make >that point known is irrelevant. And there is statute >law on the books that backs forbidding the ownership of >such a robot. Another point is that the source code is not a robot, it is a blueprint for the robot. _________________________________________________________________________ Get Your Private, Free E-mail from MSN Hotmail at http://www.hotmail.com. Share information about yourself, create your own public profile at http://profiles.msn.com. From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 29 09:58:06 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA28730 for dvd-discuss-outgoing; Tue, 29 Aug 2000 09:58:06 -0400 Received: from smtp05.primenet.com (smtp05.primenet.com [206.165.6.135]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id JAA28727 for ; Tue, 29 Aug 2000 09:58:04 -0400 Received: (from daemon@localhost) by smtp05.primenet.com (8.9.3/8.9.3) id GAA24987 for ; Tue, 29 Aug 2000 06:58:38 -0700 (MST) Received: from sessions.phx.primenet.com(206.132.239.114), claiming to be "heorot.lumbercartel.com" via SMTP by smtp05.primenet.com, id smtpdAAAaOaONW; Tue Aug 29 06:58:23 2000 Received: from frankenstein.lumbercartel.com (IDENT:dcs@frankenstein.lumbercartel.com [192.168.6.2]) by heorot.lumbercartel.com (8.9.3/8.8.7) with SMTP id GAA07492 for ; Tue, 29 Aug 2000 06:58:11 -0700 From: "D. C. Sessions" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] 3rd Party Speech Veto Unconsitutional -- Young v Simi Valley Date: Tue, 29 Aug 2000 06:56:06 -0700 X-Mailer: KMail [version 1.0.29] Content-Type: text/plain References: <20000828193143.27488.qmail@web515.mail.yahoo.com> <20000828215213.E11959@eldritchpress.org> <20000828234627.A558@localhost> In-Reply-To: <20000828234627.A558@localhost> MIME-Version: 1.0 Message-Id: <00082906580700.03521@frankenstein.lumbercartel.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, 28 Aug 2000, Paul Fenimore wrote: > I'm not trying to distract from the direction Bryan is going here > (1201 is facially unconstitutional for banning DeCSS), but I think > in this context it is worth pointing out that the direct effect of > 1201 on the "protected" work also raises some serious consitutional > issues, already mentioned long ago in this forum. > > On Mon, Aug 28, 2000 at 09:52:13PM -0400, Eric Eldred wrote: > [ ... ] > > In many ways, Corley is a classic case under the Statute of Anne, > > where copyright law all began! The new publishers under this > > statute after 1709/1710 were sued by the old ones, who had > > been licensed by the Crown. It took many years before these > > cases were settled, and the result, partially, was the Copyright > > Clause in the U.S. Constitution. > [ ... ] > > The Statute of Anne is the start of "modern" copyright, meaning > copyright claiming to promote learning, rather than the _original_ > use of copyright by the English Crown. The original use was as > the instrument of a divide-and-conquer strategy, the aim of which was > to get the English publishing industry to cooperate with the official > censorship. Printers who cooperated with the official censorship got > the carrot of copyright (including copyright on texts from antiquity); > those who refused censorship got the stick, both from the Crown and their > fellow printers who had monopolies to defend. > > What follows in carefully considered. It is the reason I'm here. > > Kaplan's use of the word "consent," and other things he has to say, are > the first substantive step away from a right to read published works. > If upheld, "consent," the patent-like nature of 1201, the prior restraint of > research, are in my opinion the death of copyright as found in the Statute > of Anne. The promotion of progress will only happen if the copyright > owner permits it. > > The point I want to reiterate is that several lines of argument > lead to the conclusion that s.1201, as interpreted, _suppresses_ > progress in the useful arts and science. Hmmm.... one must ask. If a work is locked up by measures to protect its secrecy, is it still 'published'? And if not published, is it not more a matter of trade secret than copyright? And in that case, does the Constitutional mandate apply, or is the work fair game for anyone to knock off? -- | Engineers solve problems -- it's what we do. | | Do you want to be a problem? | | D. C. Sessions === dcs@lumbercartel.com | From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 29 09:59:32 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA28803 for dvd-discuss-outgoing; Tue, 29 Aug 2000 09:59:32 -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 JAA28800 for ; Tue, 29 Aug 2000 09:59:31 -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 JAA13054 for ; Tue, 29 Aug 2000 09:59:57 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id JAA02968; Tue, 29 Aug 2000 09:59:57 -0400 (EDT) Date: Tue, 29 Aug 2000 09:59:57 -0400 (EDT) Message-Id: <200008291359.JAA02968@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Code and assassins In-Reply-To: References: Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Harold Eaton writes: > Consilgere wrote: > > >Not the way I read it. He seems to be saying it would be > >illegal to build a robot that would shoot the President > >from the book depository, and whether you built it to make > >that point known is irrelevant. And there is statute > >law on the books that backs forbidding the ownership of > >such a robot. > > Another point is that the source code is not a robot, it is > a blueprint for the robot. Hmmm... If you buy the argument that Touretzky was making with his DeCSS archive (that there is no way to draw a meaningful bright line between executable code and discussion of algorithms), then it's *both*. (NB you can't rely on the source/object code distinction here; with interpreters --- and there are C interpreters, for instance --- that distinction is meaningless). In other words, pace Touretzky, a computer program is a description of a device which, placed in the proper context, *is* the device. It has a dual nature --- one that the law (not just the DMCA, law in general), seems to be poorly equipped to deal with. But at the very least, it would be nice to have an amicus brief which properly makes the point, ideally one which relates somehow to Congress's purposes in the law. Perhaps from someone associated with a full-disclosure security list, which would be crippled, not chilled, by a Kaplanesque view of the limits of the security-testing safe harbor, 1201(j). rst From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 29 10:02:22 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA28931 for dvd-discuss-outgoing; Tue, 29 Aug 2000 10:02:22 -0400 Received: from hotmail.com (f109.law9.hotmail.com [64.4.9.109]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id KAA28928 for ; Tue, 29 Aug 2000 10:02:21 -0400 Received: from mail pickup service by hotmail.com with Microsoft SMTPSVC; Tue, 29 Aug 2000 07:02:16 -0700 Received: from 128.244.34.133 by lw9fd.law9.hotmail.msn.com with HTTP; Tue, 29 Aug 2000 14:02:16 GMT X-Originating-IP: [128.244.34.133] From: "Harold Eaton" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] FCC: an outline Date: Tue, 29 Aug 2000 10:02:16 EDT Mime-Version: 1.0 Content-Type: text/plain; format=flowed Message-ID: X-OriginalArrivalTime: 29 Aug 2000 14:02:16.0660 (UTC) FILETIME=[BD2D5940:01C011C1] Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Eric Eldred wrote: >The FCC authority stems from the well-recognized concept that >the airwaves are owned by the public and a limited bandwidth >resource that can and should be regulated. Actually it's much broader than this. The FCC regulates telephones, cable TV, etc. These are public networks, and so is the internet. I don't think your argument will go far... _________________________________________________________________________ Get Your Private, Free E-mail from MSN Hotmail at http://www.hotmail.com. Share information about yourself, create your own public profile at http://profiles.msn.com. From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 29 10:35:29 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA29056 for dvd-discuss-outgoing; Tue, 29 Aug 2000 10:35:29 -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 KAA29049 for ; Tue, 29 Aug 2000 10:35:16 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id KAA14612 for dvd-discuss@eon.law.harvard.edu; Tue, 29 Aug 2000 10:45:10 -0400 Date: Tue, 29 Aug 2000 10:45:05 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] origin of "pirate", was: (fwd) ALERT: FCC considers restricting digital Message-ID: <20000829104505.A12910@eldritchpress.org> References: <200008282045.QAA27378@soggy-fibers.ai.mit.edu> <20000829005121.D558@localhost> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <20000829005121.D558@localhost>; from fenimore@roadrunner.com on Tue, Aug 29, 2000 at 12:51:21AM -0600 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu But is it possible that the term 'pirate' was used by the established printers of the Stationers' Company, under Crown license, who were referring to the new publishers who were protected under the Statute of Anne? The timing is about the same time. As today, there was a dispute about rights, and the one with the money and power was railing against the newcomers who were destroying their business? And using a derogatory term is part and parcel of the urging of the mob to burn the competitors' offices? I think often one side called the nautical crews, approvingly, "privateers" operating "under a letter of marque" and the other called them "pirates" or "buccaneers" (a term that dates from about 1690 and also means now "an unscrupulous adventurer, esp. in politics or business") (Sir Walter Raleigh?) On Tue, Aug 29, 2000 at 12:51:21AM -0600, Paul Fenimore wrote: > I stand corrected. Thanks for looking this up. > > On Tue, Aug 29, 2000 at 01:24:04AM -0400, Jeremy A Erwin wrote: > > On Mon, 28 Aug 2000, Robert S. Thau wrote: > > > > > Paul Fenimore writes: > > > > 1. Partly, they believe their own rhetoric. "Piracy" prior to > > > > about 1900 was a word reserved for murderers, rapists, people > > > > who burned occupied ships at sea, etc. No more. > > > > > > Hmmm... I used to be sure of this, but the Atlantic article on the > > > music industry at least *seems* to have citations of "piracy" meaning > > > illicit publication from around the turn of the century: > > > http://www.theatlantic.com/cgi-bin/o/issues/2000/09/mann.htm > > > It's not particularly well sourced though, and some of them may be > > > anachronisms (though "the London pirate king" is deceptive if so --- > > > the word is in quotes). > > > > Although I iniatially suspected that "the London pirate king" was called > > by that title in a reference to Gilbert & Sullivan's "Pirates of > > Penzance", the OED indicates that this term is much older. > > > > (Oxford English Dictionary, 2nd Edition) > > " > > 4. fig. > > > > > > a. One who appropriates or reproduces without leave, for his own benefit, > > a literary, artistic, or musical composition, or an idea or invention of > > another, or, more generally, anything that he has no right to; esp. one > > who infringes on the copyright of another. > > > > > > 1668 J. Hancock Brooks' String of Pearls (Notice at end), Some dishonest > > Booksellers, called Land-Pirats, who make it their practise to steal > > Impressions of other mens Copies. > > 1701 De Foe True-born Eng. Explan. Pref. (1703) 6 Its being Printed again > > and again by Pyrates. > > 1709 Steele & Addison Tatler No. 101 P1 These Miscreants are a Set of > > Wretches we Authors call Pirates, who print any Book,..a soon as it > > appears.., in a smaller Volume, and sell it (as all other Thieves do > > stolen Goods) at a cheaper Rate. > > 1837 Lockhart Scott lvii. (1839) VII. 117 A recent alarm about one of > > Ballantyne's workmen..transmitting proof sheets of Peveril while at press > > to some American pirate. > > 1861 W. Fairbairn Address Brit. Assoc., There are abuses in the working of > > the patent law.., and protection is often granted to pirates and > > impostors, to the detriment of real inventors. > > 1887 Shakespeariana VI. 105 In 1599 two of them [Shakspere's Sonnets] were > > printed by the pirate Jaggard. > > " > > > > To give a sense of perspective, William Kidd was executed in 1701 and > > Edward Teach was killed in 1718. > > Poorly paraphrased: > It's not the things that y'a don't know, its the things that you think > are so, but ain't. -- "Eric" Eric Eldred Eldritch Press mailto:Eldred@EldritchPress.org http://www.eldritchpress.org/EricEldred.vcf From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 29 10:50:13 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA29178 for dvd-discuss-outgoing; Tue, 29 Aug 2000 10:50:13 -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 KAA29175 for ; Tue, 29 Aug 2000 10:50:01 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id KAA14652 for dvd-discuss@eon.law.harvard.edu; Tue, 29 Aug 2000 10:59:57 -0400 Date: Tue, 29 Aug 2000 10:59:51 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] 3rd Party Speech Veto Unconsitutional -- Young v Simi Valley Message-ID: <20000829105951.C12910@eldritchpress.org> References: <20000828193143.27488.qmail@web515.mail.yahoo.com> <20000828215213.E11959@eldritchpress.org> <20000828234627.A558@localhost> <00082906580700.03521@frankenstein.lumbercartel.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <00082906580700.03521@frankenstein.lumbercartel.com>; from dcs@mailhost.lumbercartel.com on Tue, Aug 29, 2000 at 06:56:06AM -0700 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, Aug 29, 2000 at 06:56:06AM -0700, D. C. Sessions wrote: >... > Hmmm.... one must ask. If a work is locked up by measures to protect > its secrecy, is it still 'published'? And if not published, is it not more a > matter of trade secret than copyright? And in that case, does the > Constitutional mandate apply, or is the work fair game for anyone to > knock off? Oddly enough, this question came up a long time ago when the Copyright Office had to consider requests to copyright object code alone instead of just source code. There was a lot of sentiment that copyrighted material must be published in some human-readable form. But after some study by a high-level commission, it was decided to go ahead with copyrighted object code alone. Technically there is also a requirement that some pages from the source code be deposited, say 25 pages from the front and 25 from the back of the listing. In addition, there is also the category under the law of copyrighting "unpublished" material, and the Copyright Office is supposed to keep that material separate and confidential. The distinction between published and unpublished is technical and in the law somewhere I think. It doesn't make much difference in the end. For some years now the U.S. has not required deposit and registration for a valid copyright, not even a notice and date. The registration requirement can be met just before trial, and possibly the information made known only to the judge. Registration is required only for collecting damages and attorney fees, not for winning an infringment suit first. This gradual accretion of power to the copyright holder has removed a lot of rights from the public at the same time. I suppose that the "reinventing government" crowd could use our programming skills to modernize the process and make copyright into more of a free market--but that too would offend the monopolies. From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 29 11:00:47 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA29290 for dvd-discuss-outgoing; Tue, 29 Aug 2000 11:00:47 -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 LAA29287 for ; Tue, 29 Aug 2000 11:00:45 -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 LAA21333; Tue, 29 Aug 2000 11:00:39 -0400 Message-Id: <200008291500.LAA21333@samsara.law.cwru.edu> To: dvd-discuss@eon.law.harvard.edu cc: junger@samsara.law.cwru.edu Subject: Re: [dvd-discuss] (fwd) ALERT: FCC considers restricting digital In-reply-to: Your message of "Mon, 28 Aug 2000 16:45:05 EDT." <200008282045.QAA27378@soggy-fibers.ai.mit.edu> Date: Tue, 29 Aug 2000 11:00:09 -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: : Paul Fenimore writes: : > 1. Partly, they believe their own rhetoric. "Piracy" prior to about 1900 w : as : > a word reserved for murderers, rapists, people who burned occupied ships : > at sea, etc. No more. : : Hmmm... I used to be sure of this, but the Atlantic article on the : music industry at least *seems* to have citations of "piracy" meaning : illicit publication from around the turn of the century: : : http://www.theatlantic.com/cgi-bin/o/issues/2000/09/mann.htm : : It's not particularly well sourced though, and some of them may be : anachronisms (though "the London pirate king" is deceptive if so --- : the word is in quotes). The ``pirates'' rhetoric appears to have been around at least as long as the copyright act. It is the traditional term used by publishers who asserted a perpetual common law copyright. Thus, for example, in _Wheaton v. Peters_, 33 U.S. 591 (1834), counsel for the plaintiff claimed, as part of his argument, that: In the reign of Anne, when the perpetual ownership of literary property was thus firmly established, the booksellers, annoyed by the piracy of unprincipled and irresponsible adventurers, applied to parliament for protection. The good thing about this usage is that it is purely rhetorical and not to be taken literally. -- 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 Aug 29 11:00:31 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA29282 for dvd-discuss-outgoing; Tue, 29 Aug 2000 11:00:31 -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 LAA29279 for ; Tue, 29 Aug 2000 11:00:30 -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 LAA20680 for ; Tue, 29 Aug 2000 11:00:56 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id LAA03330; Tue, 29 Aug 2000 11:00:56 -0400 (EDT) Date: Tue, 29 Aug 2000 11:00:56 -0400 (EDT) Message-Id: <200008291500.LAA03330@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] DVD CCA Opposition to Pavlovich Quash Motion In-Reply-To: <20000828155742.B11959@eldritchpress.org> References: <200008272358.TAA20573@soggy-fibers.ai.mit.edu> <20000827230336.B11216@eldritchpress.org> <200008281217.IAA22545@soggy-fibers.ai.mit.edu> <20000828155742.B11959@eldritchpress.org> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Eric Eldred writes: > On Mon, Aug 28, 2000 at 08:17:00AM -0400, Robert S. Thau wrote: > > It's one thing to argue that the access control right no longer > > applies after sale under the first sale doctrine. It's quite another > > to argue that the grant of the access control right itself is somehow > > illegitimate. The one doesn't get you the other. > > True, but they could both be correct anyway. > > In any case, we have to deal with Kaplan's interpretation here, > not yours (which might be better in some other realm). And what > was his finding on this? The closest I can find is footnote 137 --- the only mention of first sale or section 109 in his entire opinion --- which is strange enough to quote in full: Decryption or avoidance of an access control measure is not "circumvention"within the meaning of the statute unless it occurs "without the autority of the copyright owner." 17 USC (S) 1201(a)(3)(A). Defendants post that purchasers of a DVD acquire the right "to perform all acts with it that are not exclusively granted to the copyright holder." Based on this premise, they argue that DeCSS does not circumvent CSS within the meaning of the statute because the Copyright Act does not grant the copyright holder the right to prohibit purchasers from decrypting. As the copyright holder has no statutory right to prohibit decryption, the argument goes, decryption cannot be understood as unlawful circumvention. Def. Post-Trial Mem. 10-13. The argument is pure sophistry. The DMCA proscribes trafficking in technology that decrypts or avoids an access control measure without the copyright holder consenting to the decryption or avoidance. See JUDICIARY COMM. REP. at 17-18 (fair use applies "where access is authorized"). Defendants' argument seems to be a corruption of the first sale doctrine, which holds that the copyright holder, notwithstanding the exclusive distribution right conferred by Section 106(3) of the Copyright Act, 17 U.S.C. (S) 106(3), is deemed by its "first sale" of a copy of the copyrighted work to have consented to subsequent sale of the copy. See generally 2 Nimmer (SS) 8.11-8.12. So, Kaplan clearly holds that the right to decrypt is not transferred at sale --- ignoring 17 USC 109(c), which also states that the right to view the work (necessarily involving decryption) is also transferred at sale, as Bryan has noted several times. I can't resist noting that he denounces the defense argument as "sophistry" based on a particular, debatable interpretation of the phrase "where access is authorized": Kaplan holds that this phrase means that fair use applies "where copyright holders have consented to the decryption or avoidance" --- meaning, in his view, the *means* of decryption or avoidance. Which flies in the face of the universal praise of Universal v. Sony in the legislative history. But I think it's more than likely that the Judiciary Committee actually meant "where copyright holders have consented to *the viewer having access to the work*" --- which they clearly have done in the case of DVDs, under the first sale doctrine. So, under my alternative reading of a highly ambiguous phrase, "where access is authorized", it is the *plaintiffs'* argument which is sophistry, not the defendants'. Is there an on-line copy of this Committee report anywhere? There may very well be something in the report which clarifies the issue, which Kaplan missed the same way he missed 109(c). > I think it is important not to mix the two up. It is quite > possible that what Kaplan is saying is that first sale or > traditional fair use law does occur in the case of COPY > CONTROL under DMCA. But that it is not necessary for the > first sale or fair use to apply to ACCESS CONTROL. Therefore, > his conclusion that Congress preserved the right [of fair use, > I take it] but gave no way to obtain it. That certainly seems to be what he's saying. > So, insofar as access control is a new right, it has to be > substantiated in regards to the First Amendment scrutiny and > whether or not it is constitutional. Agreed. My problem with the fair use argument here has always been tactical: that in a case where no impeded fair use is in evidence (or, at best, limited and esoteric forms, like compression research, which are far from the core of protected political speech), it looks weaker than it ought --- which could lead some appellate court to find against it, because it looks weak, and then decline to consider a stronger fair use case when, inevitably, one comes along, because they have already considered the issue. (I hope it's not pretentious to invoke Thurgood Marshall here; he is, IIRC, remembered in the civil rights community for selecting cases with care, and choosing *not* to appeal some cases, with real plaintiffs who had suffered grievious harm, because the facts of those cases were ill-suited to the legal points he was trying to establish). > Keys are given out at purchase and limit use by some hash using > Microsoft Passport for each client. I think it would qualify as > access control because there is encryption, and the password > does limit access from the one computer you downloaded the eBook to, > so its "function" to "actually work" that way is evident. Sigh... "encryption" and "access control" are in *no way* synonymous --- that's one of the studios' lies. Consider the use of encryption algorithms for, say, providing digital signatures on press releases (which would have saved at least one company a huge amount of trouble in the past few days engendered by a fraudulent press release). If it qualifies as access control, in my view, it would be because the ability to view is somehow limited to people who have purchased the particular work, which the use of MS Passport would suggest. But it would still be legal to create an alternate implementation of that access control, which eliminated all of eBook's use controls, so long as it did not have the effect of granting access to someone who had not bought the work. > The reason I brought this example up is simply that it is a case > where the movie studios don't own all the content, and where the > content may or may not be copyrighted (as distinct from the movies, > which are mostly copyrighted by the studios). But techically the > TPMs are parallel, and it is only the traditional view of a book > that suggests to us we view the rights situation in a different > way from any other encrypted digital content. Huh?! If the keys are specific to the work and the user, as the use of MS Passport would suggest, then the TPMs are *not* parallel, except to the extent that they are both computer programs. Which is why you can't consider the legality of anything related to CSS, under the DMCA or any other law, by considering some completely different piece of technology... rst From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 29 11:07:31 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA29423 for dvd-discuss-outgoing; Tue, 29 Aug 2000 11:07:31 -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 LAA29420 for ; Tue, 29 Aug 2000 11:07:29 -0400 Received: by aero.org id <17229-4>; Tue, 29 Aug 2000 08:07:23 -0700 Received: from mhultra.aero.org(130.221.88.102) via SMTP by aero.org, id smtpdROAa12492; Tue Aug 29 08:07:08 2000 Received: from ladir01.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Tue, 29 Aug 2000 08:06:36 -0700 Subject: Re: [dvd-discuss] 3rd Party Speech Veto Unconsitutional -- Young v SimiValley To: dvd-discuss@eon.law.harvard.edu X-Mailer: Lotus Notes Release 5.0.3 March 21, 2000 Message-Id: From: Michael.A.Rolenz@aero.org X-MIMETrack: Serialize by Router on ladir01/AeroNet/Aerospace/US(Release 5.0.3 |March 21, 2000) at 08/29/2000 08:06:35 AM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Date: Tue, 29 Aug 2000 08:07:19 -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I noticed that too....Ironic....doubly so if it can be used against them "James S. Tyre" To: dvd-discuss@eon.law.harvard.edu, Sent by: dvd-discuss@eon.law.harvard.edu owner-dvd-discuss@eon.law.h cc: arvard.edu Subject: Re: [dvd-discuss] 3rd Party Speech Veto Unconsitutional -- Young v Simi Valley 08/28/00 07:38 PM Please respond to dvd-discuss At 12:31 PM 8/28/2000 -0700, Bryan Taylor wrote: >I found a GREAT case decided 6/20/2000 that held a Simi Valley zoning >ordinence facially unconstitutional because it offered favored private >3rd parties an effective veto over certain forms of controversial >expression (topless dancing). This decision rocks! Did you happen to notice which law firm represented Simi Valley? (No big deal, but amusing anyway. Old habit, I always look at the judges and lawyers involved in a decision.) -------------------------------------------------------------------- James S. Tyre mailto:jstyre@jstyre.com 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 Aug 29 11:09:31 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA29468 for dvd-discuss-outgoing; Tue, 29 Aug 2000 11:09:31 -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 LAA29465 for ; Tue, 29 Aug 2000 11:09:29 -0400 Received: by aero.org id <17279-3>; Tue, 29 Aug 2000 08:09:23 -0700 Received: from mhultra.aero.org(130.221.88.102) via SMTP by aero.org, id smtpdFNAa12492; Tue Aug 29 08:03:38 2000 Received: from ladir01.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Tue, 29 Aug 2000 08:03:14 -0700 Subject: Re: [dvd-discuss] MPA stopping paralell importing in NZ To: dvd-discuss@eon.law.harvard.edu X-Mailer: Lotus Notes Release 5.0.3 March 21, 2000 Message-Id: From: Michael.A.Rolenz@aero.org X-MIMETrack: Serialize by Router on ladir01/AeroNet/Aerospace/US(Release 5.0.3 |March 21, 2000) at 08/29/2000 08:03:13 AM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Date: Tue, 29 Aug 2000 08:03:53 -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu You only THINK that they will still be allowed to buy them from Amazon and pay airmail! What do you think is NEXT on their agenda. Not that the WTO would be concerned with either of those acts restrainting international trade.[Least anyone misinterpret, that last statement was a sneer at that organization of greedy pseudo intellectuals] Daniel Richards To: dvd-discuss@eon.law.harvard.edu Sent by: cc: owner-dvd-discuss@eon.law.h Subject: Re: [dvd-discuss] MPA stopping paralell arvard.edu importing in NZ 08/28/00 07:39 PM Please respond to dvd-discuss -----BEGIN PGP SIGNED MESSAGE----- Hash: SHA1 On Tue, 29 Aug 2000, you wrote: > On Mon, 28 Aug 2000 23:20:13 +1200, Daniel Richards wrote: [snip] > But someone in, say, New Zealand might as well wait for another comet to > hit Jupiter than for a current Hollywood movie to arrive on his shores in DVD. > Perhaps there should be an injunction limiting Hollywood hype to appropriate > regions? Auctally, video stores are currently importing DVD's that havn't even come out in the cinema's here, of course this will only be for a few more months until thee MPA bullies the goverenment into making it illegal. But then, there's nothing stopping normal people from ordering them over the net from say amazon. -- "Your future has arrived, are you ready to go?" -----BEGIN PGP SIGNATURE----- Version: GnuPG v1.0.1 (GNU/Linux) Comment: For info see http://www.gnupg.org iD8DBQE5qyFdHxSqGAiQwxwRAjdwAJ973l/0tWwXQJisCF55VVs6mFrteQCdFcVf dPsOadqZHkQExTiGQgdeZ4Q= =WjIO -----END PGP SIGNATURE----- From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 29 11:09:58 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA29478 for dvd-discuss-outgoing; Tue, 29 Aug 2000 11:09:58 -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 LAA29475 for ; Tue, 29 Aug 2000 11:09:57 -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 LAA21939 for ; Tue, 29 Aug 2000 11:10:18 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id LAA03415; Tue, 29 Aug 2000 11:10:18 -0400 (EDT) Date: Tue, 29 Aug 2000 11:10:18 -0400 (EDT) Message-Id: <200008291510.LAA03415@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] origin of "pirate", was: (fwd) ALERT: FCC considers restricting digital In-Reply-To: <20000829104505.A12910@eldritchpress.org> References: <200008282045.QAA27378@soggy-fibers.ai.mit.edu> <20000829005121.D558@localhost> <20000829104505.A12910@eldritchpress.org> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Eric Eldred writes: > But is it possible that the term 'pirate' was used > by the established printers of the Stationers' > Company, under Crown license, who were referring to the > new publishers who were protected under the Statute of > Anne? The timing is about the same time. As today, > there was a dispute about rights, and the one with the > money and power was railing against the newcomers who > were destroying their business? And using a derogatory > term is part and parcel of the urging of the mob to > burn the competitors' offices? It's clearly part of someone's PR campaign. The question was whose, and when, and whether we can blame the current "copyright industries" for this particular muddying of the waters. It seems the Dark Arts have a longer history than some of us knew... > I think often one side called the nautical crews, approvingly, > "privateers" operating "under a letter of marque" and the > other called them "pirates" or "buccaneers" (a term that > dates from about 1690 and also means now "an unscrupulous > adventurer, esp. in politics or business") (Sir Walter Raleigh?) I believe this is wrong. IIRC, a privateer is to a pirate as a mercenary soldier is to a bandit --- the privateer and mercenary both have legal sanction for what would otherwise be criminal activities (granted, in the privateer's case, by the letter of marque, which was a physical, legal document). So, if captured by the other side, for instance, the privateer and mercenary would be treated as prisoners of war, while the pirate and mercenary would be treated as common criminals; the former could be returned at the end of the conflict (or earlier, if on parole), while the latter would almost certainly be hanged. But this is getting way off-topic. rst From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 29 11:19:32 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA29796 for dvd-discuss-outgoing; Tue, 29 Aug 2000 11:19:32 -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 LAA29793 for ; Tue, 29 Aug 2000 11:19:24 -0400 Received: by aero.org id <17117-7>; Tue, 29 Aug 2000 08:19:41 -0700 Received: from mhultra.aero.org(130.221.88.102) via SMTP by aero.org, id smtpdJAAa18285; Tue Aug 29 08:19:28 2000 Received: from ladir01.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Tue, 29 Aug 2000 08:18:58 -0700 Subject: Re: [dvd-discuss] A question on copyright and free presses. To: dvd-discuss@eon.law.harvard.edu X-Mailer: Lotus Notes Release 5.0.3 March 21, 2000 Message-Id: From: Michael.A.Rolenz@aero.org X-MIMETrack: Serialize by Router on ladir01/AeroNet/Aerospace/US(Release 5.0.3 |March 21, 2000) at 08/29/2000 08:18:58 AM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Date: Tue, 29 Aug 2000 08:19:38 -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Source code is protected by copyright [what can be protected by patent is another matter. NOTHING is my belief but others believe otherwise but unless something has changed seriously in the last few years the Supreme Court has set some limits on that] The issue of what freedoms the press has WRT to copyright material is covered by "fair use". Generally they get a lot of freedom but there are limits. They can use excepts from works but not publish the work in toto. That would diminish the ability of the copyright holder to market their work and at that point the press is not reporting but distributing [I don't recall the limits put forth on the Gerald Ford memoirs publication decision] As for copyrightable but not covered by the first amendment-look at the scientology cases. They claim that their copyrighted material cannot be viewed by the public or press even when they file suits in court. Kurt Hockenbury To: dvd-discuss@eon.law.harvard.edu Sent by: cc: owner-dvd-discuss@eon.law.h Subject: [dvd-discuss] A question on copyright arvard.edu and free presses. 08/28/00 09:04 PM Please respond to dvd-discuss Something has bothered me about ruling on source code vs. freedom of speech/press. I recently put my finger on it. The copyright office web site states (at http://www.loc.gov/copyright/circs/circ1.html): WHAT IS COPYRIGHT? Copyright is a form of protection provided by the laws of the United States (title 17, U.S. Code) to the authors of original works of authorship, including literary, dramatic, musical, artistic, and certain other intellectual works. My question is, how can anything that is capable of being copyrighted not be covered by freedom of the press? Are there any examples of things that are copyrighted but not covered under the first amendment? There are easily things that are covered by the first amendment, that are not copyrightable (improvisational speeches that have not been written or recorded, for instance). But to say that an "original work of authorship" wouldn't be covered by the first amendment seems wrong in my eyes. Am I totally off base here? If not, what is the answer? If souce code isn't covered by the 1st amendment, should source code be eligible for copyright status (would it still be considered a work of authorship?) Much thanks, -Kurt Hockenbury From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 29 11:33:22 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA30765 for dvd-discuss-outgoing; Tue, 29 Aug 2000 11:33:22 -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 LAA30762 for ; Tue, 29 Aug 2000 11:33:20 -0400 Message-ID: <20000829153315.5841.qmail@web511.mail.yahoo.com> Received: from [64.81.25.36] by web511.mail.yahoo.com; Tue, 29 Aug 2000 08:33:15 PDT Date: Tue, 29 Aug 2000 08:33:15 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] The US v O'Brien standard To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-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: > > There are 5 steps involved in using software to do a functional > > task: > > 1. Write source code > > 2. Compile into object code > > 3. Distribute the software [either as source or object or both] > > 4. Install the software on a specific compatible computer > > 5. Execute the software > And isn't Kaplan confusing 3 with 5 here? Absolutely. His whole focus on the "conduct" associated with a program's functional aspects is a focus on step 5. In fact, I think his O'Brien analysis really only shows at best that 5 can be regulated. > Somehow I believe Kaplan has failed to understand the whole > principles of software and computers, and is grossly > contorting reality to fit his logic. It is very important he be > set straight now. That's what appeals courts are for. Is there any way to figure out how many times a judge has been overturned? __________________________________________________ Do You Yahoo!? Yahoo! Mail - Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 29 11:38:23 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA31235 for dvd-discuss-outgoing; Tue, 29 Aug 2000 11:38:23 -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 LAA31232 for ; Tue, 29 Aug 2000 11:38:18 -0400 Received: (from paul@localhost) by dial149.roadrunner.com (8.8.7/8.8.7) id JAA00827 for dvd-discuss@eon.law.harvard.edu; Tue, 29 Aug 2000 09:40:16 -0600 Date: Tue, 29 Aug 2000 09:40:15 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] origin of "pirate", was: (fwd) ALERT: FCC considers restricting digital Message-ID: <20000829094015.B537@localhost> References: <200008282045.QAA27378@soggy-fibers.ai.mit.edu> <20000829005121.D558@localhost> <20000829104505.A12910@eldritchpress.org> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <20000829104505.A12910@eldritchpress.org>; from eldred@eldritchpress.org on Tue, Aug 29, 2000 at 10:45:05AM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I stand corrected on the date, and corrected by a wide margin. I agree that "pirate" is a term of propaganda that raises the spectre of murder. If illegal copying is also "piracy" (i.e. a heinous crime), then there can be no room for gray areas can there? This makes it much more difficult to have a sensible discussion of fair use. Basically the same strategy was tried by Litvack a few months ago when he compared links to DeCSS with links to child pornography. Don't actually think about copyright, just treat it like an offense involving the safety of someone who would probably have difficulty defending themselves. : Of course, the MPAA says its only concern is with the DeCSS case, not linking policies in general. "There is certain hyperlinking that is clearly legal and others that aren't," says Litvack, adding that links to DeCSS are like links to child pornography, which "no one would want to proliferate, even if it's linked and not simply posted." It is clear to me that rhetoric matters, even in some surprising places. Like court: "Suicide pact," use of the word "piracy" without any finding of infringement, in fact "no infringement" *was stipulated*, yet the court still talks about piracy. No wonder fair use is basically absent from the evidentiary record. Paul Fenimore On Tue, Aug 29, 2000 at 10:45:05AM -0400, Eric Eldred wrote: > But is it possible that the term 'pirate' was used > by the established printers of the Stationers' > Company, under Crown license, who were referring to the > new publishers who were protected under the Statute of > Anne? The timing is about the same time. As today, > there was a dispute about rights, and the one with the > money and power was railing against the newcomers who > were destroying their business? And using a derogatory > term is part and parcel of the urging of the mob to > burn the competitors' offices? > > I think often one side called the nautical crews, approvingly, > "privateers" operating "under a letter of marque" and the > other called them "pirates" or "buccaneers" (a term that > dates from about 1690 and also means now "an unscrupulous > adventurer, esp. in politics or business") (Sir Walter Raleigh?) > > On Tue, Aug 29, 2000 at 12:51:21AM -0600, Paul Fenimore wrote: > > I stand corrected. Thanks for looking this up. > > > > On Tue, Aug 29, 2000 at 01:24:04AM -0400, Jeremy A Erwin wrote: > > > On Mon, 28 Aug 2000, Robert S. Thau wrote: > > > > > > > Paul Fenimore writes: > > > > > 1. Partly, they believe their own rhetoric. "Piracy" prior to > > > > > about 1900 was a word reserved for murderers, rapists, people > > > > > who burned occupied ships at sea, etc. No more. > > > > > > > > Hmmm... I used to be sure of this, but the Atlantic article on the > > > > music industry at least *seems* to have citations of "piracy" meaning > > > > illicit publication from around the turn of the century: > > > > http://www.theatlantic.com/cgi-bin/o/issues/2000/09/mann.htm > > > > It's not particularly well sourced though, and some of them may be > > > > anachronisms (though "the London pirate king" is deceptive if so --- > > > > the word is in quotes). > > > > > > Although I iniatially suspected that "the London pirate king" was called > > > by that title in a reference to Gilbert & Sullivan's "Pirates of > > > Penzance", the OED indicates that this term is much older. > > > > > > (Oxford English Dictionary, 2nd Edition) > > > " > > > 4. fig. > > > > > > > > > a. One who appropriates or reproduces without leave, for his own benefit, > > > a literary, artistic, or musical composition, or an idea or invention of > > > another, or, more generally, anything that he has no right to; esp. one > > > who infringes on the copyright of another. > > > > > > > > > 1668 J. Hancock Brooks' String of Pearls (Notice at end), Some dishonest > > > Booksellers, called Land-Pirats, who make it their practise to steal > > > Impressions of other mens Copies. > > > 1701 De Foe True-born Eng. Explan. Pref. (1703) 6 Its being Printed again > > > and again by Pyrates. > > > 1709 Steele & Addison Tatler No. 101 P1 These Miscreants are a Set of > > > Wretches we Authors call Pirates, who print any Book,..a soon as it > > > appears.., in a smaller Volume, and sell it (as all other Thieves do > > > stolen Goods) at a cheaper Rate. > > > 1837 Lockhart Scott lvii. (1839) VII. 117 A recent alarm about one of > > > Ballantyne's workmen..transmitting proof sheets of Peveril while at press > > > to some American pirate. > > > 1861 W. Fairbairn Address Brit. Assoc., There are abuses in the working of > > > the patent law.., and protection is often granted to pirates and > > > impostors, to the detriment of real inventors. > > > 1887 Shakespeariana VI. 105 In 1599 two of them [Shakspere's Sonnets] were > > > printed by the pirate Jaggard. > > > " > > > > > > To give a sense of perspective, William Kidd was executed in 1701 and > > > Edward Teach was killed in 1718. From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 29 11:41:25 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA31283 for dvd-discuss-outgoing; Tue, 29 Aug 2000 11:41:25 -0400 Received: from attila.stevens-tech.edu (khockenb@attila.stevens-tech.edu [155.246.14.11]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id LAA31279 for ; Tue, 29 Aug 2000 11:41:24 -0400 Received: from localhost (khockenb@localhost) by attila.stevens-tech.edu (8.9.3/8.9.3/7) with ESMTP id LAA3847188 for ; Tue, 29 Aug 2000 11:41:49 -0400 (EDT) Date: Tue, 29 Aug 2000 11:41:49 -0400 From: Kurt Hockenbury To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] A question on copyright and free presses. In-Reply-To: <20000829002052.B558@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 Tue, 29 Aug 2000, Paul Fenimore wrote: > The words someone else wrote are copyrighted, and you have no First > Amendment right to re-print them before their entry into the public > domain. Right, but what about works to which I hold copyright? If I own copyright to a work of authorship, can't I print it? > Yes, computer programs would still probably qualify for copyright even > if they are not protected by the First. Here is a quote from an exchange > between Bryan Taylor and Peter Junger on April 19th, 2000: > > > [ Bryan ] > : If you say that source code > : and/or object code aren't expressive, wouldn't that invalidate every software > : copyright out there? > > [ Peter ] > The trouble is that the meaning of ``expressive'' may differ in copyright > law and in the law of the First Amendment. > Ah. This is exactly where I was headed. If ``expressive'' is ``expressive'', I don't see how anyone could be legally prevented from publishing source code that they hold copyright on. And if ``expressive'' isn't ``expressive'', that would be a great shame. It sounds like that Lewis Carol quote `When I use a word,' said Humpty Dumpty, `it means exactly what I want it to mean -- no more and no less.'" Thanks again, -Kurt Hockenbury From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 29 11:48:21 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA31386 for dvd-discuss-outgoing; Tue, 29 Aug 2000 11:48:21 -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 LAA31383 for ; Tue, 29 Aug 2000 11:48:20 -0400 Received: from mit.edu (h0050da62b39d.ne.mediaone.net [24.147.217.121]) by chmls06.mediaone.net (8.8.7/8.8.7) with ESMTP id LAA09161; Tue, 29 Aug 2000 11:48:41 -0400 (EDT) Message-ID: <39ABDBD9.284F7558@mit.edu> Date: Tue, 29 Aug 2000 11:50:49 -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] A question on copyright and free presses. 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 think many people are misunderstanding the point Kurt is trying to raise. He's not asking about the First Amendment balancing for people who do _not_ hold the copyright to a work that forms part of the consitutional basis for fair use. Instead, he's asking, if a work is copyrightable, under what circumstances can the First Amendment rights of that work's _copyright holder_ can be limited to prevent him or her from publishing the work. After all, DeCSS is copyrighted (by Johansen and others), and, to be copyrightable, it must be expressive to some degree. Why is Johansen to be prohibited this expression? - Ravi Nanavati Kurt Hockenbury wrote: > > Something has bothered me about ruling on source code vs. freedom of > speech/press. I recently put my finger on it. > > The copyright office web site states > (at http://www.loc.gov/copyright/circs/circ1.html): > > WHAT IS COPYRIGHT? > > Copyright is a form of protection provided by the laws of the United > States (title 17, U.S. Code) to the authors of original works of > authorship, including literary, dramatic, musical, artistic, and > certain other intellectual works. > > My question is, how can anything that is capable of being copyrighted not > be covered by freedom of the press? Are there any examples of things that > are copyrighted but not covered under the first amendment? > > There are easily things that are covered by the first amendment, that are > not copyrightable (improvisational speeches that have not been written or > recorded, for instance). But to say that an "original work of authorship" > wouldn't be covered by the first amendment seems wrong in my eyes. > > Am I totally off base here? If not, what is the answer? > If souce code isn't covered by the 1st amendment, should source code be > eligible for copyright status (would it still be considered a work of > authorship?) > > Much thanks, > -Kurt Hockenbury From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 29 11:56:32 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA31548 for dvd-discuss-outgoing; Tue, 29 Aug 2000 11:56:32 -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 LAA31545 for ; Tue, 29 Aug 2000 11:56:30 -0400 Received: by aero.org id <17243-1>; Tue, 29 Aug 2000 08:56:50 -0700 Received: from mhultra.aero.org(130.221.88.102) via SMTP by aero.org, id smtpdIGAa18285; Tue Aug 29 08:50:29 2000 Received: from ladir01.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Tue, 29 Aug 2000 08:49:55 -0700 Subject: Re: [dvd-discuss] (fwd) ALERT: FCC considers restricting digital To: dvd-discuss@eon.law.harvard.edu X-Mailer: Lotus Notes Release 5.0.3 March 21, 2000 Message-Id: From: Michael.A.Rolenz@aero.org X-MIMETrack: Serialize by Router on ladir01/AeroNet/Aerospace/US(Release 5.0.3 |March 21, 2000) at 08/29/2000 08:49:54 AM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Date: Tue, 29 Aug 2000 08:50:37 -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Yes...this is exactly the issue. Jack Valenti has been a vocal public mouthpiece yelling "WE"RE STOPPING PIRATES. WE ARE STOPPING PEOPLE FROM BREAKIING INTO OUT INTELLECTUAL HOUSES LIKE PEOPLE BREAK INTO HOMES" But infact the whole emphasis is for the MPAA, DVD-CAA, Time Warner etc for putting locks INSIDE your home that allow you to view or not view DVDs when/where/how they choose and under the guise of providing you high quality entertainment. And it's to their benefit to 1. get rid of the first amendment. [they brook no opposition or resistance] 2. control what you watch and when [so you can pay them more money when they deign to allow you to view] 3. destroy cryptographic research [Oh...you can research it but you have to get our permission, give us $10,000, never tell anyone but us] 4. get rid of the privacy of your home[to view the movie you must have an internet account with us or an affiliate and you must have the correct keys and authentication and if we catch you watching anything we don't want you to or should you happend to buy accidently a "pirate" copy or even a defective copy and it trips our computers we will permanently disable your player, demand ransom money to unlock it and if you try ANYTHING else..the jackboot thugs of the MPAA lead by Jack, 'Is Back' Valenti will surround your abode and give no quarter....afterall if you don't ever ever do anything bad they won't be having to do this will they...] What can be done about this? WRITE. The copyright office is requesting reply comments on aspects of the DMCA [mea culpa mea culpa Bryan, Robert, John and others. I have sent in reply comments to Time Warner Inc and supportive comments on yours) Comment on Time Warner. Also there have been two others RFCs that Time Warner Inc [#2 above is a paraphrase ofTWIs comments on encryption research. ]. I'd recommend you start with Time Warner Inc and read the others as well. http://www.loc.gov/copyright/reports/studies/dmca/dmca_study.html In particular, one thought that I have been mulling about is the fact the the DeCSS case is the FIRST case under the DMCA. It sets precedence and procedure. [e.g., remember the Scopes Monkey Trial. Overturned on appeal and never used again] . I keep asking myself if the verdict in this trial was "fair use" of a law. Jolley Sent by: To: dvd-discuss@eon.law.harvard.edu owner-dvd-discuss@eon.law.h cc: arvard.edu Subject: Re: [dvd-discuss] (fwd) ALERT: FCC considers restricting digital 08/28/00 05:22 PM Please respond to dvd-discuss It has finally hit me full force that what the MPAA really wants is complete control of the player market for the major reason of stopping fair use (what they call piracy.) CSS is not at all about shuting down the mass-produced illegal copying. It is only for the average consumer. It doesn't pay to go after the small time violaters. Yet the small time consumer is a significant source of profits. I think the MPAA slogan is "keep the honest people honest." I have been thinking of different ways of preserving fair use and let consumers know about the MPAA and other "content provider's" bait and switch tactics. It wasn't until after I had bought a DVD player for my computer did I realize it was useless. Perhaps we should organize a "consumer protection group" to bring this to the attention of the MPAA's enemies (their pirate customers.) We can create a nifty little logo similar to the way Intel had an "Intel inside" logo. Our logo would be heavily advertised and only allowed on content that does not restrict a consumer from actually making fair use of the content. Who knows, this may lead manufactures, in their never ending goal of reducing cost, to build DVD players that can't decrypt DVDs. A significant number of cheap PCs would be purchased with these cheap drives. The only way for the MPAA and others to participate in this lucrative market is to make the content available in an unencrypted form. It's a war. What a terrible business to be in where your customer is your enemy. Most customers haven't realized this yet. Ravi Nanavati wrote: > > No. The way the "Secure Display Initiative" succeeds is the way > DVDs succeeded: bait and switch. Let people think they're buying > an unrestricted display (the way people thought they were buying > unrestricted pieces of plastic), then pull the rug out from under > them. People are starting to move to digital displays and HDTVs > now. All that needs to be ensured is that digital displays shipped > today (or at least the ones shipping in the near future) are > firmware-"upgradeable" to secure displays when the time is right. > This is biggest long-term danger we face: the content cartels > are quickly learning how to route around the consumer's better > instincts. > > - Ravi Nanavati From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 29 11:57:40 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA31610 for dvd-discuss-outgoing; Tue, 29 Aug 2000 11:57:40 -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 LAA31604 for ; Tue, 29 Aug 2000 11:57:39 -0400 Message-ID: <20000829155734.13627.qmail@web510.mail.yahoo.com> Received: from [64.81.25.36] by web510.mail.yahoo.com; Tue, 29 Aug 2000 08:57:34 PDT Date: Tue, 29 Aug 2000 08:57:34 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] 3rd Party Speech Veto Unconsitutional -- Young v Simi Valley To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-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: > > Did you happen to notice which law firm represented Simi Valley? Bert H. Deixler, Proskauer Rose, Los Angeles, California, for the defendant-appellant. Heh, heh, heh. Do you get bonus points when for 'rubbing their nose in it'? Is it considered bad form to point this out in a brief? __________________________________________________ Do You Yahoo!? Yahoo! Mail - Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 29 11:59:41 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA31698 for dvd-discuss-outgoing; Tue, 29 Aug 2000 11:59:41 -0400 Received: from world.std.com (root@world-f.std.com [199.172.62.5]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id LAA31695 for ; Tue, 29 Aug 2000 11:59:40 -0400 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 LAA00695 for ; Tue, 29 Aug 2000 11:56:49 -0400 (EDT) Mime-Version: 1.0 Message-Id: In-Reply-To: References: Date: Tue, 29 Aug 2000 08:50:14 -0400 To: dvd-discuss@eon.law.harvard.edu From: "Arnold G. Reinhold" Subject: Re: [dvd-discuss] A question on copyright and free presses. 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 12:01 AM -0400 8/29/2000, Kurt Hockenbury wrote: >... > >My question is, how can anything that is capable of being copyrighted not >be covered by freedom of the press? Are there any examples of things that >are copyrighted but not covered under the first amendment? > One of the recent changes to the copyright act extended coverage to ship hulls. Arnold Reinhold From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 29 12:04:55 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA31762 for dvd-discuss-outgoing; Tue, 29 Aug 2000 12:04:55 -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 MAA31759 for ; Tue, 29 Aug 2000 12:04:54 -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 MAA21661; Tue, 29 Aug 2000 12:04:47 -0400 Message-Id: <200008291604.MAA21661@samsara.law.cwru.edu> To: dvd-discuss@eon.law.harvard.edu cc: junger@samsara.law.cwru.edu Subject: Re: [dvd-discuss] Code and assassins In-reply-to: Your message of "Tue, 29 Aug 2000 09:59:57 EDT." <200008291359.JAA02968@soggy-fibers.ai.mit.edu> Date: Tue, 29 Aug 2000 12:04:17 -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: : Harold Eaton writes: : > Consilgere wrote: : > : > >Not the way I read it. He seems to be saying it would be : > >illegal to build a robot that would shoot the President : > >from the book depository, and whether you built it to make : > >that point known is irrelevant. And there is statute : > >law on the books that backs forbidding the ownership of : > >such a robot. : > : > Another point is that the source code is not a robot, it is : > a blueprint for the robot. : : Hmmm... : : If you buy the argument that Touretzky was making with his DeCSS : archive (that there is no way to draw a meaningful bright line between : executable code and discussion of algorithms), then it's *both*. (NB : you can't rely on the source/object code distinction here; with : interpreters --- and there are C interpreters, for instance --- that : distinction is meaningless). : : In other words, pace Touretzky, a computer program is a description of : a device which, placed in the proper context, *is* the device. It has : a dual nature --- one that the law (not just the DMCA, law in : general), seems to be poorly equipped to deal with. You have the device, like the computer or a dedicated DVD player. And you have a description of the way the device performs a particular function. In the case of the programmable computer one can run a program that will cause it to rewire itself so that it will perform some particular function that it would not perform in its original configuration. But the computer is still the only device around. The program is just a description of how it is wired when performing the particular function or a set of instructions that must be implemented if it is to follow that instruction. -- 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 Aug 29 12:07:39 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA31817 for dvd-discuss-outgoing; Tue, 29 Aug 2000 12:07:39 -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 MAA31814 for ; Tue, 29 Aug 2000 12:07:27 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id MAA14801 for dvd-discuss@eon.law.harvard.edu; Tue, 29 Aug 2000 12:17:23 -0400 Date: Tue, 29 Aug 2000 12:17:18 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] DVD CCA Opposition to Pavlovich Quash Motion Message-ID: <20000829121718.E12910@eldritchpress.org> References: <200008272358.TAA20573@soggy-fibers.ai.mit.edu> <20000827230336.B11216@eldritchpress.org> <200008281217.IAA22545@soggy-fibers.ai.mit.edu> <20000828155742.B11959@eldritchpress.org> <200008291500.LAA03330@soggy-fibers.ai.mit.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <200008291500.LAA03330@soggy-fibers.ai.mit.edu>; from rst@ai.mit.edu on Tue, Aug 29, 2000 at 11:00:56AM -0400 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, Aug 29, 2000 at 11:00:56AM -0400, Robert S. Thau wrote: > Eric Eldred writes: > > On Mon, Aug 28, 2000 at 08:17:00AM -0400, Robert S. Thau wrote: > > > It's one thing to argue that the access control right no longer > > > applies after sale under the first sale doctrine. It's quite another > > > to argue that the grant of the access control right itself is somehow > > > illegitimate. The one doesn't get you the other. > > > > True, but they could both be correct anyway. > > > > In any case, we have to deal with Kaplan's interpretation here, > > not yours (which might be better in some other realm). And what > > was his finding on this? > > The closest I can find is footnote 137 --- the only mention of first > sale or section 109 in his entire opinion --- which is strange enough > to quote in full: > > Decryption or avoidance of an access control measure is not > "circumvention"within the meaning of the statute unless it occurs > "without the autority of the copyright owner." 17 USC (S) > 1201(a)(3)(A). Defendants post that purchasers of a DVD acquire the > right "to perform all acts with it that are not exclusively granted to > the copyright holder." Based on this premise, they argue that DeCSS > does not circumvent CSS within the meaning of the statute because the > Copyright Act does not grant the copyright holder the right to > prohibit purchasers from decrypting. As the copyright holder has no > statutory right to prohibit decryption, the argument goes, decryption > cannot be understood as unlawful circumvention. Def. Post-Trial > Mem. 10-13. The argument is pure sophistry. The DMCA proscribes > trafficking in technology that decrypts or avoids an access control > measure without the copyright holder consenting to the decryption or > avoidance. See JUDICIARY COMM. REP. at 17-18 (fair use applies "where > access is authorized"). Defendants' argument seems to be a corruption > of the first sale doctrine, which holds that the copyright holder, > notwithstanding the exclusive distribution right conferred by Section > 106(3) of the Copyright Act, 17 U.S.C. (S) 106(3), is deemed by its > "first sale" of a copy of the copyrighted work to have consented to > subsequent sale of the copy. See generally 2 Nimmer (SS) 8.11-8.12. Holding the discussion to just this part, let's proceed. Kaplan says in the first sentence "decryption or avoidance of an access control measure" and repeats it later. But in recounting defense case, he uses only the term "decryption." I guess a logical question is if he meant two different things by the different phraseology. (Or if defense finds this accurate.) If they are meant to be different, it seems that what Kaplan has to rely on is the point that DMCA grants this new right of access vs. the traditional right of copying. And that the traditional view of fair use does pertain to copying under the exceptions noted in the law, while access had been assumed to be legitimate under first sale doctrine. So is it possible (though wildly involved) to parse the logic here something like this?-- 1. DMCA prohibits "trafficking in technology that decrypts or avoids an access control measure without the copyright holder consenting to the decryption or avoidance." 2. First sale doctrine may allow fair use--that is unchanged--after access is authorized. (Ignoring the last sentences for the moment as a red herring.) 3. The new prohibition of DMCA against unauthorized access must mean that access is being authorized not by first sale but by this explicit new statute. The extension is valid and constitutional because it has to come from the copyright holder. 4. Since encryption is a sign of both access control and copy control, "unauthorized decryption" is unauthorized access. 5. CSS is encryption technology intended to control access as well as copying. 6. Since the DMCA prohibits unauthorized access, any distribution of decryption technology in relation to CSS must be banned as unauthorized by copyright holder under DMCA. 7. If copyright holder authorizes access, then fair use can be made of work as usual. If fair use involves decryption, either user must gain separate consent from copyright holder for decryption, or else user must invent (but not "traffic in") such technology alone. 8. DeCSS involves decryption, and is not authorized by copyright holders, so distribution of DeCSS is illegal under DMCA. 9. DeCSS is not protected under fair use rules because fair use is not involved--DMCA requires authorized access first. 10. DeCSS is not protected under first sale rules because DMCA authorizes access by separate consent of copyright holder not first sale. 11. Alternatively, first sale doctrine only permits resale rights, not all rights as defendants claim--those are still reserved for copyright holder control. But in no case access, because that is reserved by DMCA for separate consent by copyright holder in the special case where access is controlled by encryption. There are other possibilities for interpretation, but let's try to dissect them one at a time here. Any ideas? From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 29 12:19:01 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA31918 for dvd-discuss-outgoing; Tue, 29 Aug 2000 12:19:01 -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 MAA31915 for ; Tue, 29 Aug 2000 12:19:00 -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 MAA04812 for ; Tue, 29 Aug 2000 12:19:26 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id MAA04183; Tue, 29 Aug 2000 12:19:25 -0400 (EDT) Date: Tue, 29 Aug 2000 12:19:25 -0400 (EDT) Message-Id: <200008291619.MAA04183@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] DVD CCA Opposition to Pavlovich Quash Motion In-Reply-To: <200008291500.LAA03330@soggy-fibers.ai.mit.edu> References: <200008272358.TAA20573@soggy-fibers.ai.mit.edu> <20000827230336.B11216@eldritchpress.org> <200008281217.IAA22545@soggy-fibers.ai.mit.edu> <20000828155742.B11959@eldritchpress.org> <200008291500.LAA03330@soggy-fibers.ai.mit.edu> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu In a previous message, I asked: > Is there an on-line copy of this Committee report anywhere? There may > very well be something in the report which clarifies the issue, which > Kaplan missed the same way he missed 109(c). Well, never overlook the obvious --- http://thomas.loc.gov/cp105/cp105query.html (the bill number is HR2281; the relevant reports are from the Judiciary and Commerce committees). The issue I was wondering about was the meaning of "authorized access", and the scope of the copyright owners' authority; and, unfortunately, there's nothing definitive in either report. The closest it comes is the phrase which a couple of Representatives read into their floor debate that: In the Committee's view, measures that can 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. But we've already seen what use Kaplan made of that... Incidentally, on another issue, the Commerce Committee report does specifically cite operating system password protection as a form of authentication, and therefore access control; IIRC, that's something we've debated in the past. rst From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 29 12:20:39 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA31935 for dvd-discuss-outgoing; Tue, 29 Aug 2000 12:20:39 -0400 Received: from world.std.com (root@world-f.std.com [199.172.62.5]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id MAA31932 for ; Tue, 29 Aug 2000 12:20:38 -0400 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 MAA29807 for ; Tue, 29 Aug 2000 12:16:22 -0400 (EDT) Mime-Version: 1.0 Message-Id: In-Reply-To: <39ABDBD9.284F7558@mit.edu> References: <39ABDBD9.284F7558@mit.edu> Date: Tue, 29 Aug 2000 12:16:18 -0400 To: dvd-discuss@eon.law.harvard.edu From: "Arnold G. Reinhold" Subject: Re: [dvd-discuss] A question on copyright and free presses. 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 11:50 AM -0400 8/29/2000, Ravi Nanavati wrote: >I think many people are misunderstanding the point Kurt is trying to raise. >He's not asking about the First Amendment balancing for people who do _not_ >hold the copyright to a work that forms part of the consitutional basis >for fair use. Instead, he's asking, if a work is copyrightable, under what >circumstances can the First Amendment rights of that work's _copyright holder_ >can be limited to prevent him or her from publishing the work. After all, >DeCSS is copyrighted (by Johansen and others), and, to be copyrightable, >it must be expressive to some degree. Why is Johansen to be prohibited this >expression? > There are whole classes of expressive work whose publication is banned under US law, but which would generally qualify for copyright protection, Some examples: Libel Pornography, especially child pornography Threats against the President Defense and, in particular, cryptographic secrets (the Pentagon Papers case bared prior restraint, not prosecution.) Works derived from other copyrighted works without permission Arnold Reinhold From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 29 12:33:11 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA32437 for dvd-discuss-outgoing; Tue, 29 Aug 2000 12:33:11 -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 MAA32434 for ; Tue, 29 Aug 2000 12:33:09 -0400 Message-ID: <20000829160621.28287.qmail@web512.mail.yahoo.com> Received: from [64.81.25.36] by web512.mail.yahoo.com; Tue, 29 Aug 2000 09:06:21 PDT Date: Tue, 29 Aug 2000 09:06:21 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] The US v O'Brien standard To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --- "D. C. Sessions" wrote: > You still don't get it. This isn't about circumvention, it's > about circumvention devices. So what if the device has > to be brought into the building, removed from the box, connected > to power and the display, have a DVD inserted, etc.? These > don't change the fact that the device itself exists to > circumvent. In this case the 'device' is constructed purely out of information, and therefore falls under the rigors of first amendment analysis, as even Kaplan admits. The O'Brien standard requires incidental restriction on speech-elements ONLY when combined with 'non-speech' elements in a course of conduct. What are the 'non-speech' elements of publishing a computer program that has not been installed or executed? __________________________________________________ Do You Yahoo!? Yahoo! Mail - Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 29 12:38:49 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA32536 for dvd-discuss-outgoing; Tue, 29 Aug 2000 12:38:49 -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 MAA32533 for ; Tue, 29 Aug 2000 12:38:48 -0400 Received: from ip214.bedford2.ma.pub-ip.psi.net ([38.32.10.214]) by relay20.smtp.psi.net with smtp (Exim 3.13 #3) id 13ToPf-0004aB-00 for dvd-discuss@eon.law.harvard.edu; Tue, 29 Aug 2000 12:39:04 -0400 From: Ron Gustavson To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] origin of "pirate", was: (fwd) ALERT: FCC considers restricting digital Date: Tue, 29 Aug 2000 12:41:11 -0400 Message-ID: <7bpnqsggm7p9m6pmat63ls3m6krhbosmnm@4ax.com> References: <200008282045.QAA27378@soggy-fibers.ai.mit.edu> <20000829005121.D558@localhost> <20000829104505.A12910@eldritchpress.org> <20000829094015.B537@localhost> In-Reply-To: <20000829094015.B537@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 MAA32534 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, 29 Aug 2000 09:40:15 -0600, Paul Fenimore wrote: >I stand corrected on the date, and corrected by a wide margin. I agree >that "pirate" is a term of propaganda that raises the spectre of murder. >If illegal copying is also "piracy" (i.e. a heinous crime), then there >can be no room for gray areas can there? This makes it much more >difficult to have a sensible discussion of fair use. As a conciousness-raising measure, we may want to tape skull and crossbones to every Xerox machine. You could also leave a coffee can there for copyright payments--say, arbitrary minimum of $2.50 per page (what one periodical fax service used to charge.) __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 29 12:44:28 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA32585 for dvd-discuss-outgoing; Tue, 29 Aug 2000 12:44:28 -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 MAA32582 for ; Tue, 29 Aug 2000 12:44:27 -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 MAA10345 for ; Tue, 29 Aug 2000 12:44:53 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id MAA04355; Tue, 29 Aug 2000 12:44:53 -0400 (EDT) Date: Tue, 29 Aug 2000 12:44:53 -0400 (EDT) Message-Id: <200008291644.MAA04355@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] A question on copyright and free presses. In-Reply-To: References: Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Arnold G. Reinhold writes: > One of the recent changes to the copyright act extended coverage to > ship hulls. Which, believe it or not, was part of the DMCA (introduced in the House, though there's precious little reference to it, if any, in their floor debate, and none that I can find in the Commerce or Judiciary committee reports --- was it introduced in the Rules committee?!). The only reference I can find to it in debate is in the Senate debate on the Conference Committee bill, which included vessel hull design protection in deference to the House, but specifically limited it to vessel hulls (the original House draft would have covered all industrial designs), and includes these gems. From Sen. Leahy: Establishing narrow protection for vessel hulls in the conference report should not be interpreted as signaling support, or setting a precedent, for broader design protection that could negatively affect the ability of consumers to obtain economical, quality auto repairs. After all, it's not as if anyone's livelihood depends on being able to obtain economical, quality repairs to a boat, right? And from Sen. Thurmond, of all people: I share Senator Hatch's concerns about this controversial title. It contains not only industrial design protection, which itself has created controversy in the past because of its impact on consumers and others, but it protects functionality of vessel hulls in addition to aesthetic aspects. It is my understanding that functionality is protected from copying through patent, and this title is a significant departure from that principle, although for a specific narrow area. What is there to say besides "Article I, Section 8, clause 8"? rst From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 29 13:01:34 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA00620 for dvd-discuss-outgoing; Tue, 29 Aug 2000 13:01:34 -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 NAA00617 for ; Tue, 29 Aug 2000 13:01:33 -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 NAA12985 for ; Tue, 29 Aug 2000 13:01:59 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id NAA04509; Tue, 29 Aug 2000 13:01:58 -0400 (EDT) Date: Tue, 29 Aug 2000 13:01:58 -0400 (EDT) Message-Id: <200008291701.NAA04509@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] DVD CCA Opposition to Pavlovich Quash Motion In-Reply-To: <20000829121718.E12910@eldritchpress.org> References: <200008272358.TAA20573@soggy-fibers.ai.mit.edu> <20000827230336.B11216@eldritchpress.org> <200008281217.IAA22545@soggy-fibers.ai.mit.edu> <20000828155742.B11959@eldritchpress.org> <200008291500.LAA03330@soggy-fibers.ai.mit.edu> <20000829121718.E12910@eldritchpress.org> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Eric Eldred writes: > Kaplan says in the first sentence "decryption or avoidance of an > access control measure" and repeats it later. But in recounting > defense case, he uses only the term "decryption." I guess a > logical question is if he meant two different things by the > different phraseology. (Or if defense finds this accurate.) Decryption and avoidance are defined in the law as two different ways one might circumvent an access control. Decryption is the one that applies in this case; Kaplan mentions avoidance just to point out that his analysis is meant to apply to other forms of circumvention as well. > If they are meant to be different, it seems that what Kaplan has to > rely on is the point that DMCA grants this new right of access > vs. the traditional right of copying. And that the traditional > view of fair use does pertain to copying under the exceptions noted > in the law, while access had been assumed to be legitimate under > first sale doctrine. Well, that is what he believes, though I'm not sure what it has to do with decryption vs. avoidance (the only thing that matters to Kaplan is that they're both circumvention). Your subsequent argument looks to me like a fair restatement of his position (which depends, as I said before, on his view of the scope of copyright holders' authority); in particular > 10. DeCSS is not protected under first sale rules because DMCA authorizes > access by separate consent of copyright holder not first sale. > > 11. Alternatively, first sale doctrine only permits resale rights, > not all rights as defendants claim--those are still reserved for > copyright holder control. But in no case access, because that is > reserved by DMCA for separate consent by copyright holder in the > special case where access is controlled by encryption. look like fair restatements of his conclusions on first sale. One comment on another point of the argument: > 7. If copyright holder authorizes access, then fair use can be made > of work as usual. If fair use involves decryption, either user > must gain separate consent from copyright holder for decryption, or > else user must invent (but not "traffic in") such technology alone. Compare to the following from the Judiciary committee report: In a fact situation where the access is authorized, the traditional defenses to copyright infringement, including fair use, would be fully applicable. So, an individual would not be able to circumvent in order to gain unauthorized access to a work, but would be able to do so in order to make fair use of a work which he or she has acquired lawfully. This implies that, even on Kaplan's reading of the law, fair use is a defense to the *application* of DeCSS, though it would still fall under the trafficking bans. rst From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 29 13:02:03 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA00627 for dvd-discuss-outgoing; Tue, 29 Aug 2000 13:02:03 -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 NAA00624 for ; Tue, 29 Aug 2000 13:02:01 -0400 Message-ID: <20000829170156.29100.qmail@web514.mail.yahoo.com> Received: from [64.81.25.36] by web514.mail.yahoo.com; Tue, 29 Aug 2000 10:01:56 PDT Date: Tue, 29 Aug 2000 10:01:56 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] Code and assassins To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-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: > In other words, pace Touretzky, a computer program is a description > of a device which, placed in the proper context, *is* the device. The code is 'placed in the proper context' when it is installed, thereby making the physical computer capable of executing the instructions. Consider Touretzky's example of a program written in a language for which no compiler is written. Consider DeCSS (windows executable) sitting on 2600's FreeBSD web server. Even when it is installed and executes, it isn't so simple. A computer is an multimedia device, so even the execution of a program can constitute speech, as the 2nd Circuit held in the Altai decision. Which brings up a very important point. Are human vocal cords 'devices'? What about pencils? Could all devices capable of leaving marks be banned to fight the substantial government interest in reducing graffiti? Some devices are 'speech devices', and their use cannot be considered 'non speech' conduct. I consider a text editor and web server to be among these. Indeed, there is no communication in the physical world without some physical 'device' that participating it. Congress in 1201(c)(4) states where it draws the line for the scope of devices it considers in scope. When O'Brien burned his draft card, he used fire and the card as his speech devices. It seems untenable to label these together as inherently speech-devices. Additionally, his actions in some sense infringed on the right of the governement to maintain the physical integrity of a document that they own and provide. No one would suggest that O'Brien could not have replicated his draft card and burned the copy. Indeed, this is what distinguishes flag burning from draft card burning: you own the flag. With DeCSS, distributing the speech inherent in a computer program uses only traditional speech-devices and cannot be distinguished from writing and sending a novel without examining its content -- that is what are the particular speech elements used in the text file and what do they mean. __________________________________________________ Do You Yahoo!? Yahoo! Mail - Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 29 13:03:38 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA01266 for dvd-discuss-outgoing; Tue, 29 Aug 2000 13:03:38 -0400 Received: from dial210.roadrunner.com (sf-du210.cybermesa.com [209.12.75.210]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id NAA01130 for ; Tue, 29 Aug 2000 13:03:32 -0400 Received: (from paul@localhost) by dial210.roadrunner.com (8.8.7/8.8.7) id LAA01526 for dvd-discuss@eon.law.harvard.edu; Tue, 29 Aug 2000 11:05:27 -0600 Date: Tue, 29 Aug 2000 11:05:26 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] A question on copyright and free presses. Message-ID: <20000829110526.A1389@localhost> References: <20000829002052.B558@localhost> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: ; from khockenb@stevens-tech.edu on Tue, Aug 29, 2000 at 11:41:49AM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, Aug 29, 2000 at 11:41:49AM -0400, Kurt Hockenbury wrote: > On Tue, 29 Aug 2000, Paul Fenimore wrote: [ ... ] > > Yes, computer programs would still probably qualify for copyright even > > if they are not protected by the First. Here is a quote from an exchange > > between Bryan Taylor and Peter Junger on April 19th, 2000: > > > > > > [ Bryan ] > > : If you say that source code > > : and/or object code aren't expressive, wouldn't that invalidate every software > > : copyright out there? > > > > [ Peter ] > > The trouble is that the meaning of ``expressive'' may differ in copyright > > law and in the law of the First Amendment. > > > > Ah. This is exactly where I was headed. If ``expressive'' is > ``expressive'', I don't see how anyone could be legally prevented from > publishing source code that they hold copyright on. > > And if ``expressive'' isn't ``expressive'', that would be a great shame. > > It sounds like that Lewis Carol quote > > `When I use a word,' said Humpty Dumpty, `it means exactly what I want > it to mean -- no more and no less.'" For example, MIT physicist Theodore Postel analyzed public information relating to National Missile Defense. Postel wrote a letter reporting his findings, namely that test have been rigged and failures have been covered up. The reaction of the Pentagon was to classify the letter and his source materials as secret or above (I don't what they designated them). Postel still probably holds copyright on the letter, but my understanding is that it is illegal for him to republish. Even though parts of findings were reported in the 9 June 2000, NY Times. You are correct that *banning* publication under the Copyright Clause is a novel approach to Congress' mandate of "promote progress." Furthermore, the case of DeCSS is different from this example, because it is a third party, not the government that instigates the ban. Bryan Taylor's postings in the last few days have gone down this road from the prior restraint direction. I've also found "Throught The Looking Glass" to be a sure guide to the operation of the District Court and a window into the minds of the MPAA. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 29 13:09:21 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA01612 for dvd-discuss-outgoing; Tue, 29 Aug 2000 13:09:21 -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 NAA01609 for ; Tue, 29 Aug 2000 13:09:19 -0400 Received: by aero.org id <17122-6>; Tue, 29 Aug 2000 10:09:41 -0700 Received: from mhultra.aero.org(130.221.88.102) via SMTP by aero.org, id smtpdKDAa26839; Tue Aug 29 10:09:32 2000 Received: from ladir01.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Tue, 29 Aug 2000 10:05:56 -0700 Subject: Re: [dvd-discuss] A question on copyright and free presses. To: dvd-discuss@eon.law.harvard.edu X-Mailer: Lotus Notes Release 5.0.3 March 21, 2000 Message-Id: From: Michael.A.Rolenz@aero.org X-MIMETrack: Serialize by Router on ladir01/AeroNet/Aerospace/US(Release 5.0.3 |March 21, 2000) at 08/29/2000 10:05:55 AM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Date: Tue, 29 Aug 2000 10:09:39 -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Why is Johansen to be prohibited this expression? Because he's "trafficking" in circumvention devices which are outlawed under the DMCA. While I realize this is an old fashioned argument but there is a clear and present danger that screaming hoards of hackers will ravage the newly emerging DVD market leaving it barren and profitless for those who have created it and are now entitled to its benefits..... Sarcasm, aside [and directed at the "P"s arguments in court], in some ways this is the crux of the issue and one that Kaplan did a two step to avoid. He made his ruling according to the LAW (ie. DMCA). The question is where does the "fair use" boundary lie. I did get the impression that Kaplan isn't sure himself anymore. Possessing a copyright on material does not give one the right to distribute it. If you were passing out instructions for the construction of nuclear weapons that actually DID allow one to construct a nuclear weapon, your copyrighted material would not be allowed distribution either [that's already been done...a guys senior thesis was how to build a nuclear weapon.]. Also, I do not believe that copyright is a defense against illegal acts. I just don't find that this case has any merit under [Justice Holmes's?] clear and present danger test for first amendment cases but then the DMCA seems designed to do away with that by calling it "trafficking". Ravi Nanavati To: dvd-discuss@eon.law.harvard.edu Sent by: cc: owner-dvd-discuss@eon.law.h Subject: Re: [dvd-discuss] A question on arvard.edu copyright and free presses. 08/29/00 08:50 AM Please respond to dvd-discuss I think many people are misunderstanding the point Kurt is trying to raise. He's not asking about the First Amendment balancing for people who do _not_ hold the copyright to a work that forms part of the consitutional basis for fair use. Instead, he's asking, if a work is copyrightable, under what circumstances can the First Amendment rights of that work's _copyright holder_ can be limited to prevent him or her from publishing the work. After all, DeCSS is copyrighted (by Johansen and others), and, to be copyrightable, it must be expressive to some degree. Why is Johansen to be prohibited this expression? - Ravi Nanavati Kurt Hockenbury wrote: > > Something has bothered me about ruling on source code vs. freedom of > speech/press. I recently put my finger on it. > > The copyright office web site states > (at http://www.loc.gov/copyright/circs/circ1.html): > > WHAT IS COPYRIGHT? > > Copyright is a form of protection provided by the laws of the United > States (title 17, U.S. Code) to the authors of original works of > authorship, including literary, dramatic, musical, artistic, and > certain other intellectual works. > > My question is, how can anything that is capable of being copyrighted not > be covered by freedom of the press? Are there any examples of things that > are copyrighted but not covered under the first amendment? > > There are easily things that are covered by the first amendment, that are > not copyrightable (improvisational speeches that have not been written or > recorded, for instance). But to say that an "original work of authorship" > wouldn't be covered by the first amendment seems wrong in my eyes. > > Am I totally off base here? If not, what is the answer? > If souce code isn't covered by the 1st amendment, should source code be > eligible for copyright status (would it still be considered a work of > authorship?) > > Much thanks, > -Kurt Hockenbury From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 29 13:15:49 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA01719 for dvd-discuss-outgoing; Tue, 29 Aug 2000 13:15:49 -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 NAA01716 for ; Tue, 29 Aug 2000 13:15:47 -0400 Received: by aero.org id <17114-5>; Tue, 29 Aug 2000 10:16:07 -0700 Received: from mhultra.aero.org(130.221.88.102) via SMTP by aero.org, id smtpdUGAa26839; Tue Aug 29 10:15:56 2000 Received: from ladir01.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Tue, 29 Aug 2000 10:15:12 -0700 Subject: Re: [dvd-discuss] A question on copyright and free presses. To: dvd-discuss@eon.law.harvard.edu X-Mailer: Lotus Notes Release 5.0.3 March 21, 2000 Message-Id: From: Michael.A.Rolenz@aero.org X-MIMETrack: Serialize by Router on ladir01/AeroNet/Aerospace/US(Release 5.0.3 |March 21, 2000) at 08/29/2000 10:15:11 AM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Date: Tue, 29 Aug 2000 10:16:06 -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I can understand the reason for ship hulls but considering all the millions of ships that have been made over the years, many of them by hand, some of the fights might get pretty amusing ["I have a patent", "yeah but the "Queen Sheba" built in Nantucket in 1878 had the same hull design","but the plans are not known to anyone","they are just in the Nantucket Maritime Museum"] "Arnold G. Reinhold" To: dvd-discuss@eon.law.harvard.edu Sent by: cc: owner-dvd-discuss@eon.law.h Subject: Re: [dvd-discuss] A question on arvard.edu copyright and free presses. 08/29/00 09:15 AM Please respond to dvd-discuss At 12:01 AM -0400 8/29/2000, Kurt Hockenbury wrote: >... > >My question is, how can anything that is capable of being copyrighted not >be covered by freedom of the press? Are there any examples of things that >are copyrighted but not covered under the first amendment? > One of the recent changes to the copyright act extended coverage to ship hulls. Arnold Reinhold From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 29 13:17:07 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA01784 for dvd-discuss-outgoing; Tue, 29 Aug 2000 13:17:07 -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 NAA01780 for ; Tue, 29 Aug 2000 13:17:06 -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 NAA15501; Tue, 29 Aug 2000 13:17:32 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id NAA04584; Tue, 29 Aug 2000 13:17:31 -0400 (EDT) Date: Tue, 29 Aug 2000 13:17:31 -0400 (EDT) Message-Id: <200008291717.NAA04584@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Cc: junger@samsara.law.cwru.edu Subject: Re: [dvd-discuss] Code and assassins In-Reply-To: <200008291604.MAA21661@samsara.law.cwru.edu> References: <200008291359.JAA02968@soggy-fibers.ai.mit.edu> <200008291604.MAA21661@samsara.law.cwru.edu> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Peter D. Junger writes: > You have the device, like the computer or a dedicated DVD player. And > you have a description of the way the device performs a particular > function. In the case of the programmable computer one can run a > program that will cause it to rewire itself so that it will perform > some particular function that it would not perform in its original > configuration. But the computer is still the only device around. > The program is just a description of how it is wired when performing > the particular function or a set of instructions that must be implemented > if it is to follow that instruction. Hmmm... would you hold, then, that distributing a computer program can't be patent infringement, since all you're doing is distributing a description of the patented process (morally equivalent to what the patent itself is supposed to provide), and not an article which actually performs the patented process? I'll admit to knowing less about software patent law than I probably should just working in the field, but this is, at least, not my impression of how those cases have turned out so far. In particular, it would imply that it is currently legal to distribute one's own code to perform RSA encryption, and not just the RSAref libraries, which a lot of free software projects have gone through some contortions to use. For instance, IIRC, the free implementation of the SSL libraries originally used its own RSA routines, but had to be modified to use RSAref. (The RSA issue will be moot in a month or so, I think, when the relevant patent finally expires, but the larger principle certainly stands, and with the spread of software patents, it's gaining importance). rst From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 29 13:20:33 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA01876 for dvd-discuss-outgoing; Tue, 29 Aug 2000 13:20:33 -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 NAA01873 for ; Tue, 29 Aug 2000 13:20:32 -0400 Message-ID: <20000829172027.12892.qmail@web513.mail.yahoo.com> Received: from [64.81.25.36] by web513.mail.yahoo.com; Tue, 29 Aug 2000 10:20:27 PDT Date: Tue, 29 Aug 2000 10:20:27 -0700 (PDT) From: Bryan Taylor Subject: [dvd-discuss] ESR responds to DVD-CCA insults To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-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://linuxtoday.com/news_story.php3?ltsn=2000-08-28-001-07-NW-SM __________________________________________________ Do You Yahoo!? Yahoo! Mail - Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 29 13:32:39 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA02007 for dvd-discuss-outgoing; Tue, 29 Aug 2000 13:32:39 -0400 Received: from dial184.roadrunner.com (sf-du184.cybermesa.com [209.12.75.184]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id NAA02004 for ; Tue, 29 Aug 2000 13:32:36 -0400 Received: (from paul@localhost) by dial184.roadrunner.com (8.8.7/8.8.7) id LAA01843 for dvd-discuss@eon.law.harvard.edu; Tue, 29 Aug 2000 11:34:32 -0600 Date: Tue, 29 Aug 2000 11:34:31 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] A question on copyright and free presses. Message-ID: <20000829113430.A1691@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 Tue, Aug 29, 2000 at 10:09:39AM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, Aug 29, 2000 at 10:09:39AM -0700, Michael.A.Rolenz@aero.org wrote: [ ... ] > Possessing a copyright on material does not give one the right to > distribute it. If you were passing out instructions for the construction of > nuclear weapons that actually DID allow one to construct a nuclear weapon, > your copyrighted material would not be allowed distribution either [that's > already been done...a guys senior thesis was how to build a nuclear > weapon.]. Also, I do not believe that copyright is a defense against > illegal acts. > > I just don't find that this case has any merit under [Justice Holmes's?] > clear and present danger test for first amendment cases but then the DMCA > seems designed to do away with that by calling it "trafficking". [ ... ] Right. The interesting part of this point is that the Copyright Clause, whose stated motivation is to promote progress, is being used to justify a prior restraint. "Promote progress" is a very peculiar basis for a prior restraint. The rationale for prohibiting the publication of exact details on how to put a stick of LiD inside a U holhraum and set the whole mess of with a little sphere of Pu is totally different, even if both result in a prior restraint. From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 29 13:39:19 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA02169 for dvd-discuss-outgoing; Tue, 29 Aug 2000 13:39:19 -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 NAA02166 for ; Tue, 29 Aug 2000 13:39:17 -0400 Received: (from uucp@localhost) by natsemi-bh.nsc.com (8.8.8/8.6.11) id KAA07226 for ; Tue, 29 Aug 2000 10:39:40 -0700 (PDT) Received: from mailhost1.ia.nsc.com(147.5.200.40) by natsemi-bh.nsc.com via smap (4.1) id xma006685; Tue, 29 Aug 00 10:38:42 -0700 Received: from ball by ia.nsc.com (SMI-8.6/SMI-SVR4) id LAA01949; Tue, 29 Aug 2000 11:38:41 -0600 From: "John Zulauf" To: Subject: Re: [dvd-discuss] DVD CCA Opposition to Pavlovich Quash Motion Date: Tue, 29 Aug 2000 11:42:43 -0600 Message-ID: <000801c011e0$88ca9c20$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 Speaking of sophistry, there is some pretty slick bait and switch in this footnote dismissing the D's authority model. Read carefully... RST quoted Kaplan thusly > The closest I can find is footnote 137 --- the only mention of first > sale or section 109 in his entire opinion Decryption or avoidance of an access control measure is not "circumvention"within the meaning of the statute unless it occurs 1>>> "without the autority of the copyright owner." 17 USC (S) 1201(a)(3)(A). Defendants post that purchasers of a DVD acquire the right "to perform all acts with it that are not exclusively granted to the copyright holder." Based on this premise, they argue that DeCSS does not circumvent CSS within the meaning of the statute because the Copyright Act does not grant the copyright holder the right to prohibit purchasers from decrypting. As the copyright holder has no statutory right to prohibit decryption, the argument goes, decryption cannot be understood as unlawful circumvention. Def. Post-Trial Mem. 10-13. The argument is pure sophistry. The DMCA proscribes trafficking in technology that decrypts or avoids an access control 2>>> measure without the copyright holder consenting to the decryption or avoidance. Did you catch it? Note the subtle sophistry of the word change from "authority" to "consent" at >>>1 and >>>2. The law requires the "authority of the copyright owner, whereas Kaplan would have us believe 1201 required the copyright holders "consent." What is the difference and why is it important? Authority is a legal concept with limitations beyond the mere wishes of the person or agency granted that authority. The Copyright Act directly limits the authority of the copyright holder past first sale as the defense points out. Consent is basically the agreement to and endorsement with a given action, regardless of the authority to regulate that action. I may not consent to having a topless bar in my neighborhood, however I have no authority to evict them based on that. A soldier may not consent to (vote for) a president, but does not have the authority to follow some different commander-in-chief. A convicted murderer in Texas may not consent to his own capital punishment, but certainly doesn't have the authority to simply walk off "death row." The law limits authority and the extent to which consent can be imposed. Here's a specific example of the differences. When children are unemancipated minors, parents have the authority to control many aspects the child's life. In this case the consent and authority of the parent are well aligned. As the parent has in these areas effective authority, what the parent consents to the child may do and that to which the parent does not consent to the child may not do. (Lawyers help me here with appropriate minor, contract, and guardianship law.) However, when the child is emancipated or achieves majority, a parent may not consent to a good many things the adult child chooses. While this may impact their relationship it is no longer binding on the now adult child as the parent has lost the authority to impose their consent. A published work reaches "majority" at "first sale" when the analogy is applied to copyright works. Once published and sold, the copyright holder probably would not consent to my further selling of my work or my loaning it to my neighbors, friends, or family. That is irrelevant. As the parent of an adult child no longer has authority matching the extent of their consent, the legitmate owner of the published work has rights beyond the reach of the copyright holder, and authority granted by that first sale. By confusing consent with authority the Court has greatly extended the power of the copyright owner beyond not only traditional first sale limitations, but beyond the explicity wording of 1201. According to Kaplan, the actions of a user regarding legitimately acquired copyright material are governed by the unregulated whim (consent) of the copyright holder. How that can be justified is quite beyond me, and hopefully a reasonable ground for appeal. Any fool knows that if someone doesn't have my consent they don't have my authority Unless, of course, the authority is no longer yours to give or has already been given irrevocably. Just because you regret granting authority (all the way to the bank you regret it -- right!) doesn't mean that you can revoke it arbitrarily. This is like selling mineral rights to an oil field because you've sabotaged the well (and plan to drill sideways from an adjacent property) -- and then telling the new owner he or she doesn't have the right fix well, or drill his or her own. You can't sell the rights and hold them. There's got to be a better DA than that? John M. Zulauf private netizen From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 29 13:39:59 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA02181 for dvd-discuss-outgoing; Tue, 29 Aug 2000 13:39:59 -0400 Received: from imo-r16.mx.aol.com (imo-r16.mx.aol.com [152.163.225.70]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id NAA02178 for ; Tue, 29 Aug 2000 13:39:58 -0400 From: Consilgere@cs.com Received: from Consilgere@cs.com by imo-r16.mx.aol.com (mail_out_v28.15.) id x.72.293f0ff (8417) for ; Tue, 29 Aug 2000 13:39:46 -0400 (EDT) Message-ID: <72.293f0ff.26dd4f62@cs.com> Date: Tue, 29 Aug 2000 13:39:46 EDT Subject: Re: [dvd-discuss] Code and assassins 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 In a message dated 8/28/00 10:40:16 PM Eastern Daylight Time, tjolley@swbell.net writes: > So, is he saying that it is legal to own a training manual on how to > build DeCSS and illegal to own DeCSS? Yes. It is legal to own training manuals on illegal firearms. From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 29 13:43:45 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA02339 for dvd-discuss-outgoing; Tue, 29 Aug 2000 13:43:45 -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 NAA02336 for ; Tue, 29 Aug 2000 13:43:44 -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 NAA22242; Tue, 29 Aug 2000 13:43:40 -0400 Message-Id: <200008291743.NAA22242@samsara.law.cwru.edu> To: dvd-discuss@eon.law.harvard.edu cc: junger@samsara.law.cwru.edu, junger@samsara.law.cwru.edu Subject: Re: [dvd-discuss] Code and assassins In-reply-to: Your message of "Tue, 29 Aug 2000 13:17:31 EDT." <200008291717.NAA04584@soggy-fibers.ai.mit.edu> Date: Tue, 29 Aug 2000 13:43:10 -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: : Peter D. Junger writes: : > You have the device, like the computer or a dedicated DVD player. And : > you have a description of the way the device performs a particular : > function. In the case of the programmable computer one can run a : > program that will cause it to rewire itself so that it will perform : > some particular function that it would not perform in its original : > configuration. But the computer is still the only device around. : > The program is just a description of how it is wired when performing : > the particular function or a set of instructions that must be implemented : > if it is to follow that instruction. : : Hmmm... would you hold, then, that distributing a computer program : can't be patent infringement, since all you're doing is distributing a : description of the patented process (morally equivalent to what the : patent itself is supposed to provide), and not an article which : actually performs the patented process? The distinction that I was making was recognized by the Federal Circuit when they first started allowing software patents. The patent was on the machine (or device) that resulted when you programmed a computer in the manner claimed in the patent. Of late, the Federal Circuit has gone beyond that apparently. But I don't think there are any cases holding that copying or publishing a program can be a patent infringement. But patent protection applies to making, using, or selling the claimed invention, so reconfiguring a computer so that it performs the function of the device claimed in the patent and, more obvioulsly, using the programmed computer to perform the\ functions claimed in the patent would be infringements. So you can see why the opensoftware programs would not dare use RSA encryption, even though just publishing the code would not be an infringement. Of course, some day the Supreme Court is going to re-iterate that it meant what it said in _Gotschalk v. Bensen_ and suddenly there won't be any software patents. -- 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 Aug 29 13:54:52 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA02415 for dvd-discuss-outgoing; Tue, 29 Aug 2000 13:54:52 -0400 Received: from imo-d10.mx.aol.com (imo-d10.mx.aol.com [205.188.157.42]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id NAA02411 for ; Tue, 29 Aug 2000 13:54:51 -0400 From: Consilgere@cs.com Received: from Consilgere@cs.com by imo-d10.mx.aol.com (mail_out_v28.15.) id x.d0.a6ca3fd (8417) for ; Tue, 29 Aug 2000 13:54:42 -0400 (EDT) Message-ID: Date: Tue, 29 Aug 2000 13:54:42 EDT Subject: Re: [dvd-discuss] Code and assassins 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 In a message dated 8/29/00 12:07:29 PM Eastern Daylight Time, junger@samsara.law.cwru.edu writes: << You have the device, like the computer or a dedicated DVD player. And you have a description of the way the device performs a particular function. In the case of the programmable computer one can run a program that will cause it to rewire itself so that it will perform some particular function that it would not perform in its original configuration. But the computer is still the only device around. The program is just a description of how it is wired when performing the particular function or a set of instructions that must be implemented if it is to follow that instruction >> In a world where everyone understands and accepts the way computers actually physically function, that would be acceptable. But that is not the way people treat computers today. Lay people treat the computational models that programs derive from as physical property to the point where they give it value, and the law is following in their footsteps. I'm not saying it's right, but it's what "the people" want. To really get your point across, you need to refocus people's definitions of what programs and data actually are. And when the lay people are properly refocused, the law will swing back to your side. From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 29 13:55:50 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA02449 for dvd-discuss-outgoing; Tue, 29 Aug 2000 13:55:50 -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 NAA02440 for ; Tue, 29 Aug 2000 13:55:49 -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 NAA21489 for ; Tue, 29 Aug 2000 13:56:15 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id NAA04709; Tue, 29 Aug 2000 13:56:14 -0400 (EDT) Date: Tue, 29 Aug 2000 13:56:14 -0400 (EDT) Message-Id: <200008291756.NAA04709@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Hmmm... what's a key? In-Reply-To: <200008291619.MAA04183@soggy-fibers.ai.mit.edu> References: <200008272358.TAA20573@soggy-fibers.ai.mit.edu> <20000827230336.B11216@eldritchpress.org> <200008281217.IAA22545@soggy-fibers.ai.mit.edu> <20000828155742.B11959@eldritchpress.org> <200008291500.LAA03330@soggy-fibers.ai.mit.edu> <200008291619.MAA04183@soggy-fibers.ai.mit.edu> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Hmmm... on reflection, I'd like to take back some former comments: > The issue I was wondering about > was the meaning of "authorized access", and the scope of the copyright > owners' authority; and, unfortunately, there's nothing definitive in > either report. The closest it comes is the phrase which a couple of > Representatives read into their floor debate that: > > In the Committee's view, measures that can 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. I think that actually is useful. The defining characteristic of a key, both in ordinary language (as applied to physical keys and locks), and in cryptography, is that it is an item (either a physical object or information) which is *made available only to authorized individuals*, and used by some technical artifact (a lock or a cipher engine) in order to distinguish between individuals who have or have not been granted authority to access. Without that restriction, what's left of the Comittee's definition is that a "key" is some artifact or information, and that, paraphrasing. > measures that can 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 piece of information, or > physical artifact] which is obviously vacuous. Now, CSS features several different pieces of information defined as keys, but in no case is their distribution limited to authorized individuals. Specifically: *) The player keys are available to anyone who buys a player; Kaplan describes players as a means of distributing those keys. *) All the other keys are physically embedded on the DVD disk which they supposedly protect. The "key-welded-to-the-lock" argument applies to these --- if the key to a room is bolted to the lock anyone can walk up to the room, turn the key, and achieve access, then it isn't really a key at all; it's a funny-looking doorknob. I went on to say: > But we've already seen what use Kaplan made of that... Briefly, he argued that the player keys are the "keys provided by the copyright owner", in the committee's definition of access control. But the distribution of those keys is not limited to authorized viewers (readers, etc.) of any *particular* work, which means that according to my arguments above, they aren't really keys, unless the definition of "key" is rendered so broad as to render the committee's definition vacuous. (There's also a minor problem with "provided by the copyright owner"; the player keys are provided by the DVDCCA, and copyright owners don't even have access. But I'm not sure that's really a big deal; a lot of cryptographic systems don't give authorized users full access to the keys they are using --- IIRC, the military systems designed by the NSA often embed key material in anti-tamper dongles which are designed to resist attempts to get at the key from anything other than another NSA-built piece of equipment). rst From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 29 13:59:09 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA02590 for dvd-discuss-outgoing; Tue, 29 Aug 2000 13:59:09 -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 NAA02587 for ; Tue, 29 Aug 2000 13:59:08 -0400 Message-ID: <20000829175903.8720.qmail@web514.mail.yahoo.com> Received: from [64.81.25.36] by web514.mail.yahoo.com; Tue, 29 Aug 2000 10:59:03 PDT Date: Tue, 29 Aug 2000 10:59:03 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] Code and assassins To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-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: > I'll admit to knowing less about software patent law than I probably > should just working in the field, but this is, at least, not my > impression of how those cases have turned out so far. Does anybody know what the important cases in the patenting of software are? It might be helpful to draw from them. __________________________________________________ Do You Yahoo!? Yahoo! Mail - Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 29 14:08:53 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA02797 for dvd-discuss-outgoing; Tue, 29 Aug 2000 14:08:53 -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 OAA02794 for ; Tue, 29 Aug 2000 14:08:51 -0400 Received: from sites.inka.de (puric.inka.de [212.227.14.17]) by mail.inka.de with esmtp id 13Tpoy-0003oV-00; Tue, 29 Aug 2000 20:09:16 +0200 Received: from localhost by sites.inka.de with local id 13Tpoz-0007CL-00; Tue, 29 Aug 2000 20:09:17 +0200 Date: Tue, 29 Aug 2000 20:09:17 +0200 From: Sham Gardner To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Hmmm... what's a key? Message-ID: <20000829200916.A24329@inka.de> References: <200008272358.TAA20573@soggy-fibers.ai.mit.edu> <20000827230336.B11216@eldritchpress.org> <200008281217.IAA22545@soggy-fibers.ai.mit.edu> <20000828155742.B11959@eldritchpress.org> <200008291500.LAA03330@soggy-fibers.ai.mit.edu> <200008291619.MAA04183@soggy-fibers.ai.mit.edu> <200008291756.NAA04709@soggy-fibers.ai.mit.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0i In-Reply-To: <200008291756.NAA04709@soggy-fibers.ai.mit.edu>; from rst@ai.mit.edu on Tue, Aug 29, 2000 at 01:56:14PM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, Aug 29, 2000 at 01:56:14PM -0400, Robert S. Thau wrote: > *) The player keys are available to anyone who buys a player; > Kaplan describes players as a means of distributing those keys. This may not be significant, but only one player key is available in each make of player to obtain all the keys with the DVDCCA's blessing you would have to buy over 400 diffeent players. > *) All the other keys are physically embedded on the DVD disk which > they supposedly protect. The "key-welded-to-the-lock" argument > applies to these --- if the key to a room is bolted to the lock > anyone can walk up to the room, turn the key, and achieve access, > then it isn't really a key at all; it's a funny-looking doorknob. The keys embedded on the DVD are only available via the application of a player, which must be lawfully obtained. Sham -- http://sites.inka.de/risctaker/DeCSS/ "The first speech censored, the first thought forbidden, the first freedom denied, chains us all irrevocably." (Jean-Luc Picard) From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 29 14:15:42 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA02903 for dvd-discuss-outgoing; Tue, 29 Aug 2000 14:15:42 -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 OAA02900 for ; Tue, 29 Aug 2000 14:15:41 -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 OAA24675 for ; Tue, 29 Aug 2000 14:16:07 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id OAA04859; Tue, 29 Aug 2000 14:16:07 -0400 (EDT) Date: Tue, 29 Aug 2000 14:16:07 -0400 (EDT) Message-Id: <200008291816.OAA04859@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Hmmm... what's a key? In-Reply-To: <20000829200916.A24329@inka.de> References: <200008272358.TAA20573@soggy-fibers.ai.mit.edu> <20000827230336.B11216@eldritchpress.org> <200008281217.IAA22545@soggy-fibers.ai.mit.edu> <20000828155742.B11959@eldritchpress.org> <200008291500.LAA03330@soggy-fibers.ai.mit.edu> <200008291619.MAA04183@soggy-fibers.ai.mit.edu> <200008291756.NAA04709@soggy-fibers.ai.mit.edu> <20000829200916.A24329@inka.de> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Sham Gardner writes: > On Tue, Aug 29, 2000 at 01:56:14PM -0400, Robert S. Thau wrote: > > *) The player keys are available to anyone who buys a player; > > Kaplan describes players as a means of distributing those keys. > > This may not be significant, but only one player key is available in each > make of player to obtain all the keys with the DVDCCA's blessing you would > have to buy over 400 diffeent players. What matters to my argument is that the keys are not specific to a particular work; *each* key grants access to *all* DVDs. That more than one exists is irrelevant. > > *) All the other keys are physically embedded on the DVD disk which > > they supposedly protect. The "key-welded-to-the-lock" argument > > applies to these --- if the key to a room is bolted to the lock > > anyone can walk up to the room, turn the key, and achieve access, > > then it isn't really a key at all; it's a funny-looking doorknob. > > The keys embedded on the DVD are only available via the application of > a player, which must be lawfully obtained. Only relevant, given my argument, if the player "key" itself is limited to authorized viewers of a particular protected work, which is simply not the case. rst From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 29 14:31:26 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA02975 for dvd-discuss-outgoing; Tue, 29 Aug 2000 14:31:26 -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 OAA02971 for ; Tue, 29 Aug 2000 14:31:25 -0400 Message-ID: <20000829183120.25986.qmail@web513.mail.yahoo.com> Received: from [64.81.25.36] by web513.mail.yahoo.com; Tue, 29 Aug 2000 11:31:20 PDT Date: Tue, 29 Aug 2000 11:31:20 -0700 (PDT) From: Bryan Taylor Subject: [dvd-discuss] CNN article on full disclosure To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu CNN has written an article about "full disclosure": http://www.cnn.com/2000/TECH/computing/08/28/computer.bugs.ap/index.html __________________________________________________ Do You Yahoo!? Yahoo! Mail - Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 29 14:35:17 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA03093 for dvd-discuss-outgoing; Tue, 29 Aug 2000 14:35:17 -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 OAA03090 for ; Tue, 29 Aug 2000 14:35:16 -0400 Received: from ip214.bedford2.ma.pub-ip.psi.net ([38.32.10.214]) by relay20.smtp.psi.net with smtp (Exim 3.13 #3) id 13TqEX-0006Gy-00 for dvd-discuss@eon.law.harvard.edu; Tue, 29 Aug 2000 14:35:42 -0400 From: Ron Gustavson To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] DVD CCA Opposition to Pavlovich Quash Motion Date: Tue, 29 Aug 2000 14:37:49 -0400 Message-ID: References: <200008272358.TAA20573@soggy-fibers.ai.mit.edu> <20000827230336.B11216@eldritchpress.org> <200008281217.IAA22545@soggy-fibers.ai.mit.edu> <20000828155742.B11959@eldritchpress.org> <200008291500.LAA03330@soggy-fibers.ai.mit.edu> <200008291619.MAA04183@soggy-fibers.ai.mit.edu> In-Reply-To: <200008291619.MAA04183@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 OAA03091 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, 29 Aug 2000 12:19:25 -0400 (EDT), Robert S. Thau wrote: > > But we've already seen what use Kaplan made of that... In every instance, Congress has understated explicit details and described a simple authority model between copyright owner and citizen. In the whitespace, Kaplan and MPAA have written a metaphysical play, worthy of Camus. >Briefly, he argued that the player keys are the "keys provided by the >copyright owner", in the committee's definition of access control. > >But the distribution of those keys is not limited to authorized >viewers (readers, etc.) of any *particular* work, which means that >according to my arguments above, they aren't really keys, unless the >definition of "key" is rendered so broad as to render the committee's >definition vacuous. Also, **key==new doorknob does impact the trade deficit re: real piracy. This is an issue for FTC to investigate. **or, rather, three doorknobs, two of which are on the door to the house, and one on a freestanding gate down the street marked "official house entry [TM]." Monty Python could make a nice skit: "did you play hopscotch? You must play hopscotch first..." MPA is just trying to turn the commons into a gated community. __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 29 14:46:53 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA03488 for dvd-discuss-outgoing; Tue, 29 Aug 2000 14:46:53 -0400 Received: from mail.lemuria.org (lemuria.borgfelde.ricardo.de [195.244.103.65]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id OAA03485 for ; Tue, 29 Aug 2000 14:46:51 -0400 Received: from lemuria.org by mail.lemuria.org via rsmtp with bsmtp id for ; Tue, 29 Aug 2000 20:40:45 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Received: by lemuria.org via sendmail with stdio id for dvd-discuss@eon.law.harvard.edu; Tue, 29 Aug 2000 19:56:43 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Date: Tue, 29 Aug 2000 19:56:43 +0200 From: Tom Vogt To: dvd-discuss@eon.law.harvard.edu, decss@lists.lemuria.org Subject: [dvd-discuss] DeCSS art contest Message-ID: <20000829195643.A15136@lemuria.org> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0pre3i X-Privacy: If you can, please encrypt your mails - finger for key Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu may be of interest to you - if you want to spread the word, please do. btw: if emmanuel/eric is on this list, or someone has direct contact - could you please ask him whether he's received my e-mail? I want him to be a judge (for a change). :) For Immediate Release Art Contest focusses on DeCSS, Jon Johanson member of jury. DeCSS, the DVD decryption software the MPAA tries to declare illegal, is a topic that touches politics, science and art, but has so far not been discussed in any of those contextes. DeArt aims to open the discussion in one of these fields - art. DeArt is an art contest, starting on September 1st and running until the end of the year, that accepts submissions of original artwork and will be judging them, including prices for the best pieces. Jon Johanson, one of the authors of DeCSS, is a member of the jury. Emmanuel Goldstein, the MPAA's target in New York, has also been invited. DeArt is 100% digital and online. The DeArt webpage is located at: http://www.lemuria.org/DeArt/ The originator of DeArt, and also a member of the jury, is Tom Vogt, one of the named defendant in the California DeCSS lawsuit. Tom Vogt is a resident of Germany, and still surprised that he is being sued in California for a webpage on his (german) webserver. For further information, contact: Tom Vogt tom@lemuria.org -- "The net treats censorship as a malfunction and re-routes around it." (John Gilmore) From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 29 14:53:32 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA03646 for dvd-discuss-outgoing; Tue, 29 Aug 2000 14:53:32 -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 OAA03643 for ; Tue, 29 Aug 2000 14:53:30 -0400 Received: by aero.org id <17166-4>; Tue, 29 Aug 2000 11:53:32 -0700 Received: from mhultra.aero.org(130.221.88.102) via SMTP by aero.org, id smtpdVKAa02231; Tue Aug 29 11:42:42 2000 Received: from ladir01.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Tue, 29 Aug 2000 11:27:58 -0700 Subject: Re: [dvd-discuss] A question on copyright and free presses. To: dvd-discuss@eon.law.harvard.edu X-Mailer: Lotus Notes Release 5.0.3 March 21, 2000 Message-Id: From: Michael.A.Rolenz@aero.org X-MIMETrack: Serialize by Router on ladir01/AeroNet/Aerospace/US(Release 5.0.3 |March 21, 2000) at 08/29/2000 11:27:57 AM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Date: Tue, 29 Aug 2000 11:45:15 -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Agreed....I don't consider the distribution of new and "better" forms of entertainment [e.g., DVDs] which only serve to make my 'entertainment experience" more enjoyable [at the cost of thousands of my earnings] to be promoting progress of any sort. Obviously, most of us in this discussion group do feel that encryption research and ability to discuss technical matters does promote progress. I'm having a difficult time with just WHAT the clear and present danger that everybody seems to fear will happen. Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Sent by: cc: owner-dvd-discuss@eon.law.h Subject: Re: [dvd-discuss] A question on arvard.edu copyright and free presses. 08/29/00 10:34 AM Please respond to dvd-discuss On Tue, Aug 29, 2000 at 10:09:39AM -0700, Michael.A.Rolenz@aero.org wrote: [ ... ] > Possessing a copyright on material does not give one the right to > distribute it. If you were passing out instructions for the construction of > nuclear weapons that actually DID allow one to construct a nuclear weapon, > your copyrighted material would not be allowed distribution either [that's > already been done...a guys senior thesis was how to build a nuclear > weapon.]. Also, I do not believe that copyright is a defense against > illegal acts. > > I just don't find that this case has any merit under [Justice Holmes's?] > clear and present danger test for first amendment cases but then the DMCA > seems designed to do away with that by calling it "trafficking". [ ... ] Right. The interesting part of this point is that the Copyright Clause, whose stated motivation is to promote progress, is being used to justify a prior restraint. "Promote progress" is a very peculiar basis for a prior restraint. The rationale for prohibiting the publication of exact details on how to put a stick of LiD inside a U holhraum and set the whole mess of with a little sphere of Pu is totally different, even if both result in a prior restraint. From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 29 15:23:40 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA04140 for dvd-discuss-outgoing; Tue, 29 Aug 2000 15:23:40 -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 PAA04137 for ; Tue, 29 Aug 2000 15:23:39 -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 OAA01115 for ; Tue, 29 Aug 2000 14:24:05 -0500 (CDT) Message-ID: <39AC0DB4.D47433E8@uic.edu> Date: Tue, 29 Aug 2000 14:23:32 -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] CNN article on full disclosure Content-Type: text/plain; charset=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: > Others say telling about how software is vulnerable to > hackers before companies have a chance to fix the > problem only invites attack. > "There needs to be a Hippocratic Oath for security > professionals," said Joel de la Garza of the Internet > security company Securify. "A rule like 'first, do no > harm' would be a very good thing, but highly unlikely." I'd rather see a Hippocratic Oath for professionals that provide security products. A company that just "whips up" a defective security model which then fails to protect billions of dollars worth of other people's assets, instead of using a peer-reviewed, publicly disclosed security model is no different then a surgeon who just "makes up" his surgery as he goes along, ignoring the entire body of medical knowledge, and kills his patient. If the DVD-CCA were a doctor, it would be guilty of malpractice. From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 29 15:37:51 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA04501 for dvd-discuss-outgoing; Tue, 29 Aug 2000 15:37:51 -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 PAA04498 for ; Tue, 29 Aug 2000 15:37:50 -0400 Received: from mit.edu (h0050da62b39d.ne.mediaone.net [24.147.217.121]) by chmls06.mediaone.net (8.8.7/8.8.7) with ESMTP id PAA23302; Tue, 29 Aug 2000 15:38:14 -0400 (EDT) Message-ID: <39AC11A6.C90F5ACB@mit.edu> Date: Tue, 29 Aug 2000 15:40:23 -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: [dvd-discuss] Technology Review Column Content-Type: text/plain; charset=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 got my free alumni copy of Technology Review in the mail and I was horrified by the "Inside Innovation" column by G. Pascal Zachary. It's online at: http://www.techreview.com/articles/oct00/zachary.htm In it he says "Tools such as MP3 and MP4 should be banned." because of the threat of digital copying. He also says "... drawing a line [against technologies like MP3 and MP3] isn't futile...", in part, because it "... sends a broader message to innovators: Rules still apply to their corner of life." I don't think anyone here thinks that rules don't apply to innovators. The important questions are: what are those rules and who determines them? Secret meetings and political lobbying by the media industries or the copyright tradition in the Constitution? Following Eric Eldred's example, if anyone would like to help me compose a letter to the editor rebutting this column I'd appreciate it. - Ravi Nanavati From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 29 15:39:35 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA04635 for dvd-discuss-outgoing; Tue, 29 Aug 2000 15:39:35 -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 PAA04632 for ; Tue, 29 Aug 2000 15:39:34 -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 PAA07248 for ; Tue, 29 Aug 2000 15:40:00 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id PAA05405; Tue, 29 Aug 2000 15:40:00 -0400 (EDT) Date: Tue, 29 Aug 2000 15:40:00 -0400 (EDT) Message-Id: <200008291940.PAA05405@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] CNN article on full disclosure In-Reply-To: <20000829183120.25986.qmail@web513.mail.yahoo.com> References: <20000829183120.25986.qmail@web513.mail.yahoo.com> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Bryan Taylor writes: > CNN has written an article about "full disclosure": > > http://www.cnn.com/2000/TECH/computing/08/28/computer.bugs.ap/index.html Bruce Schneier's new book, "Secrets and Lies", discusses this point as well; his position is given on pp. 342-3. (He's in favor of full disclosure in general, but with exceptions; he says he dislikes prematurely publicizing possible flaws in a system which might turn out to be unfounded, immediate public disclosure without advance notice to the vendor, and distribution of exploits that can be used directly as attack tools). It also has interesting things to say about access control. (Briefly, I like his definitions, though of course, they aren't *directly* applicable to the interpretation of the DMCA). FWIW, the book is targeted really at executives and others with a nontechnical background who don't know how to think about computer security issues, so if nontechnical folks on the list are looking for a good backgrounder, I'd recommend it. For instance, the preface begins with this admonition to people who believe that cryptography, per se, can provide any kind of security: I have written this book partly to correct a mistake. Seven years ago I wrote another book: Applied Cryptography. In it I described a mathermatical utopia: algorithsm that would keep your deepest secrets safe for millennia, protocols that could perform the most fantastical electronic interactions --- unregulated gambling, undetectable authentication, anonymous cash --- safely and securely. In my vision cryptography was the great technological equalizer; anyone with a cheap (and getting cheaper every year) computer could have the same security as the largest government. In the second edition of the same book, written two years later, I went so far as to write: "It is insufficient to protect ourselves with laws; we need to protect ourselves with mathematics." It's just not true. Cryptography can't do any of that. It's not that cryptography has gotten weaker since 1994, or that the things I described in that book are no longer true; it's that cryptography doesn't exist in a vacuum. ... Since writing the book, I have made a living as a cryptography consultant: designing and analyzing security systems. To my initial surprise, the weak points had nothing to do with the mathematics. They were in the hardware, the software, the networks, and the people. Given that, it's perhaps naive to decry the DMCA as "legal substitues for poor cryptography", no matter what one things of the protections it provides... rst From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 29 15:48:45 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA04821 for dvd-discuss-outgoing; Tue, 29 Aug 2000 15:48:45 -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 PAA04818 for ; Tue, 29 Aug 2000 15:48:43 -0400 Received: from sites.inka.de (puric.inka.de [212.227.14.17]) by mail.inka.de with esmtp id 13TrNd-0007Ju-00; Tue, 29 Aug 2000 21:49:09 +0200 Received: from localhost by sites.inka.de with local id 13TrNg-0007n8-00; Tue, 29 Aug 2000 21:49:12 +0200 Date: Tue, 29 Aug 2000 21:49:11 +0200 From: Sham Gardner To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Technology Review Column Message-ID: <20000829214911.B28635@inka.de> References: <39AC11A6.C90F5ACB@mit.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0i In-Reply-To: <39AC11A6.C90F5ACB@mit.edu>; from ravi_n@mit.edu on Tue, Aug 29, 2000 at 03:40:23PM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, Aug 29, 2000 at 03:40:23PM -0400, Ravi Nanavati wrote: > I don't think anyone here thinks that rules don't apply to > innovators. The important questions are: what are those rules > and who determines them? Secret meetings and political lobbying > by the media industries or the copyright tradition in the > Constitution? Following Eric Eldred's example, if anyone > would like to help me compose a letter to the editor > rebutting this column I'd appreciate it. One thing that immediately sprang out at me: # Medical and pharmaceutical technologies are routinely regulated. # So are cars, planes and other transport innovations. All of these "innovations" pose an immediate threat to human life if imporoperly used. The same can hardly be said of audio and video compression techniques. Sham -- http://sites.inka.de/risctaker/DeCSS/ "The first speech censored, the first thought forbidden, the first freedom denied, chains us all irrevocably." (Jean-Luc Picard) From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 29 15:57:23 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA04933 for dvd-discuss-outgoing; Tue, 29 Aug 2000 15:57:23 -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 PAA04930 for ; Tue, 29 Aug 2000 15:57:21 -0400 Received: by aero.org id <17114-7>; Tue, 29 Aug 2000 12:57:43 -0700 Received: from mhultra.aero.org(130.221.88.102) via SMTP by aero.org, id smtpdCIAa10294; Tue Aug 29 12:57:35 2000 Received: from ladir01.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Tue, 29 Aug 2000 12:57:04 -0700 Subject: Re: [dvd-discuss] DVD CCA Opposition to Pavlovich Quash Motion To: dvd-discuss@eon.law.harvard.edu X-Mailer: Lotus Notes Release 5.0.3 March 21, 2000 Message-Id: From: Michael.A.Rolenz@aero.org X-MIMETrack: Serialize by Router on ladir01/AeroNet/Aerospace/US(Release 5.0.3 |March 21, 2000) at 08/29/2000 12:57:04 PM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Date: Tue, 29 Aug 2000 12:57:43 -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Even Congress didn't imagine the legal twisting.... The question is if the holder of the copyright also has the right to give the key providing access to the work to a third party and NOT to the purchaser of the copyright material....my answer is NO because you are not granting me FREE access but holding my access to a third party. The copyright holder is NOT giving up all rights. Ron Gustavson To: dvd-discuss@eon.law.harvard.edu Sent by: cc: owner-dvd-discuss@eon.law.h Subject: Re: [dvd-discuss] DVD CCA Opposition to arvard.edu Pavlovich Quash Motion 08/29/00 11:37 AM Please respond to dvd-discuss On Tue, 29 Aug 2000 12:19:25 -0400 (EDT), Robert S. Thau wrote: > > But we've already seen what use Kaplan made of that... In every instance, Congress has understated explicit details and described a simple authority model between copyright owner and citizen. In the whitespace, Kaplan and MPAA have written a metaphysical play, worthy of Camus. >Briefly, he argued that the player keys are the "keys provided by the >copyright owner", in the committee's definition of access control. > >But the distribution of those keys is not limited to authorized >viewers (readers, etc.) of any *particular* work, which means that >according to my arguments above, they aren't really keys, unless the >definition of "key" is rendered so broad as to render the committee's >definition vacuous. Also, **key==new doorknob does impact the trade deficit re: real piracy. This is an issue for FTC to investigate. **or, rather, three doorknobs, two of which are on the door to the house, and one on a freestanding gate down the street marked "official house entry [TM]." Monty Python could make a nice skit: "did you play hopscotch? You must play hopscotch first..." MPA is just trying to turn the commons into a gated community. __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 29 16:05:40 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA05360 for dvd-discuss-outgoing; Tue, 29 Aug 2000 16:05:40 -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 QAA05357 for ; Tue, 29 Aug 2000 16:05:38 -0400 Received: by aero.org id <17126-4>; Tue, 29 Aug 2000 13:05:51 -0700 Received: from mhultra.aero.org(130.221.88.102) via SMTP by aero.org, id smtpdZIAa10294; Tue Aug 29 13:05:34 2000 Received: from ladir01.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Tue, 29 Aug 2000 13:05:09 -0700 Subject: Re: [dvd-discuss] CNN article on full disclosure To: dvd-discuss@eon.law.harvard.edu X-Mailer: Lotus Notes Release 5.0.3 March 21, 2000 Message-Id: From: Michael.A.Rolenz@aero.org X-MIMETrack: Serialize by Router on ladir01/AeroNet/Aerospace/US(Release 5.0.3 |March 21, 2000) at 08/29/2000 01:05:08 PM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Date: Tue, 29 Aug 2000 13:05:41 -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu That's part of the problem I have with DMCA and its definition of professional encryption researcher. The professionals created CSS and the amateurs broke it in jig time.....but then I guess competency is not a requirement for being a professional only a paper certificate with a gold star and a red seal. John Schulien Sent by: To: dvd-discuss@eon.law.harvard.edu owner-dvd-discuss@eon.law.h cc: arvard.edu Subject: [dvd-discuss] CNN article on full disclosure 08/29/00 12:25 PM Please respond to dvd-discuss >From the article: > Others say telling about how software is vulnerable to > hackers before companies have a chance to fix the > problem only invites attack. > "There needs to be a Hippocratic Oath for security > professionals," said Joel de la Garza of the Internet > security company Securify. "A rule like 'first, do no > harm' would be a very good thing, but highly unlikely." I'd rather see a Hippocratic Oath for professionals that provide security products. A company that just "whips up" a defective security model which then fails to protect billions of dollars worth of other people's assets, instead of using a peer-reviewed, publicly disclosed security model is no different then a surgeon who just "makes up" his surgery as he goes along, ignoring the entire body of medical knowledge, and kills his patient. If the DVD-CCA were a doctor, it would be guilty of malpractice. From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 29 16:10:30 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA05489 for dvd-discuss-outgoing; Tue, 29 Aug 2000 16:10:30 -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 QAA05486 for ; Tue, 29 Aug 2000 16:10:25 -0400 Received: from ip92.bedford8.ma.pub-ip.psi.net ([38.32.78.92]) by relay20.smtp.psi.net with smtp (Exim 3.13 #3) id 13TriT-00005U-00 for dvd-discuss@eon.law.harvard.edu; Tue, 29 Aug 2000 16:10:41 -0400 From: Ron Gustavson To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Technology Review Column Date: Tue, 29 Aug 2000 16:12:49 -0400 Message-ID: References: <39AC11A6.C90F5ACB@mit.edu> <20000829214911.B28635@inka.de> In-Reply-To: <20000829214911.B28635@inka.de> 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 QAA05487 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, 29 Aug 2000 21:49:11 +0200, Sham Gardner wrote: ># Medical and pharmaceutical technologies are routinely regulated. ># So are cars, planes and other transport innovations. >All of these "innovations" pose an immediate threat to human life if >imporoperly used. The same can hardly be said of audio and video compression >techniques. | Tools such as MP3 and (sic) MP4 should be banned. Should we also jettison GIF and JPEG. Or do they stay because photographers don't have an international monopoly? __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 29 16:11:25 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA05528 for dvd-discuss-outgoing; Tue, 29 Aug 2000 16:11:25 -0400 Received: from dial180.roadrunner.com (sf-du180.cybermesa.com [209.12.75.180]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id QAA05510 for ; Tue, 29 Aug 2000 16:11:13 -0400 Received: (from paul@localhost) by dial180.roadrunner.com (8.8.7/8.8.7) id OAA02187 for dvd-discuss@eon.law.harvard.edu; Tue, 29 Aug 2000 14:13:02 -0600 Date: Tue, 29 Aug 2000 14:13:02 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] New software to challenge CSS is copy protection Message-ID: <20000829141301.A1909@localhost> References: <000c01c0113d$2d042ee0$87ce0593@ia.nsc.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <000c01c0113d$2d042ee0$87ce0593@ia.nsc.com>; from john.zulauf@ia.nsc.com on Mon, Aug 28, 2000 at 04:13:21PM -0600 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Mon, Aug 28, 2000 at 04:13:21PM -0600, John Zulauf wrote: > It has been argued that CSS is copy protection and that DeCSS allows > unlimited identical copies. I believe Paul has long argued that decryption > cannot be considered copy control, since copies can be made before or after > decryption. the P's argued that the encrypted VOBs while copiable are > unusable. Software however should allow a challenge to this. Having actual > software like this around would allow this issue to no longer be addressed > as the ever problematic hypothetical. Neither encryption nor decryption can be considered copy protection for the simple reason that they are the transformation of one string/number into another and back. Nothing about a formal transformation of one real number into another real number has any effect on the physical operation of diddling the coarse-grained entropy of a new medium to make a new copy. People will say things along the lines of, "but it is effectively copy control," but this is a very dangerous statement to make because there is at least one hidden assumption. What is true is that encryption is a *use* control. It prevents viewing (i.e. comprehension) of a work, and it prevents making derivatives. People may find it convenient to think of this as copy prevention as a sort of short-hand, however it is wrong. The proposition that decryption is "effectively copy control" falls down for published works. The normal mode of operation for encryption is to give the decryption key to a specified set of people. Only those people can legitimately get the plaintext. Ok, I'm mixing legal ("legitimate") and technical views here, but I don't think I'm being misleading, the terminology is a linguistic convenience. This is the solution to the privacy problem, so long as the parties don't publish the plaintext subsequent to decryption. There's that word -- publish. Problem is, published works are not private. For a valid access control measure, say by reasonable standards of 1201-authority, the keys are still secret. However, the work is available to *anyone* who wants it. There is a financial price of course, and the keys are secret, but the plaintext is available to all comers. No privacy for the plaintext there. At this point people usually bring up two issues: 1. DeCSS allowed me to make a copy. That shows CSS is copy control. 2. Lack of digital outputs, non-gacked analog outputs, etc. My reply to "DeCSS allowed my to make a copy," can be summarized in short form as, "so what?" The only programs and devices that don't "allow" copies to be made are those that destroy data, or never look at it: bash# rm -rf / or if you want to be a bit more thorough, bash# dd if=/dev/zero of=/dev/hda A CCA-licensed player allows me to make copies too! Perhaps not in exactly the same spot as DeCSS, but if you want to talk about that, we're talking about "2" now, and have changed the subject away from "1". My reply to "2" is that the absence of digital outputs is not in any coherent sense part of the technological measure of encryption. The only technological things that might prevent someone from getting digital outputs of the plaintext is not knowing the algorithm. If the algorithm is secret, the holder of that secret can turn around and license that secret. Additional terms give the licensor some control over the kinds of players that get built. Moving on to locking the keys up in tamper-proof hardware runs into two objections. A. See "2" above, the "key-owner" is dictating the design of players. Because this is a stored-data application, keeping the keys hidden inside this hardware doesn't have much to do with secure communications hardware like the "Secure Telephone Unit" --- STU's. The "right" way to implement secure communication is to destroy the key at the earliest possible moment. A player device is designed to retain the key material for many playings, not one. B. Say the descrambling part of the player device breaks in 20 years. Suppose the CCA refuses to give me a copy of the key, and doesn't "authorize" the construction of a new device. There would be no useful way I could call the work on the copy I own "published". It would at that point pass into de-publication. I've got an additional point that isn't directly related to whether or not encryption or decryption is copy control, but is related to the bizarre results of holding that licensing agreements are granted special status by 1201. Things like the "no copy" flag that the court examined in _Realnetworks v. Streambox_, *are in fact no such thing*! It is *mandatory* that Realnetworks software makes a copy to the screen, and into RAM. Otherwise there would be nothing to watch. What the flag specifies is that the existing copy on your computer *must be destroyed*. Either the copyright owner authorized that a copy be made into RAM, or the copy is legal under section 117 fair use. Requiring the destruction of existing legitimate copies after one viewing is not an exclusive right listed in section 106. The point of which is that I think we have a concrete example of the "a pencil is a circumvention device under this ruling" that is wizz-bang electronic and consequently shares lots of cosmetic similarities with DeCSS that a pencil doesn't have. (There is a long discussion we could have about the difference between "broadcast" and "copies". I contend that broadcasting is making an (usually) astronomically large number of copies, ususually into the photon field around an antenna. The difference between these two terms is illusory. People bought the illusion because for a number of years there were only two styles of receiver/signal processor available. There are still called "TV"s and "radio"s. People confused the properties of those devices with the properties of the copies made into the "aether"). > I propose a new software player or CSS decrypter be constructed with the > following properties: > > Please edit and enlarge this rough spec, the notes, questions, and comments. > > (1) Required inputs > (1.1)The encrypted .VOB files > (1.2)The encrypted keys from the DVD (whichever are necessary) > > (2) Required outputs > (2.1a)The decrypted .VOB files > (2.1b)Playback of the .VOB files (with no clear text hard disk copy) Before Kaplan's ruling, I would have though this would be useful in making some points about the particular implemtation of linear-feedback shift-register encryption called CSS, and for drawing a line between contract and device/technology. Perhaps this would affect another judge, but I don't see how to get this into the evidentiary record. Making the distinction between technology and the license to a technology, as far as Kaplan was concerned, seems to be a bit like bouncing marshmallows off a brick wall. Kaplan has bascially said that section 1201 grants patent-like control over processes (to the DVD-CCA none-the-less!) This can still be attacked from constitutional ground, but I don't see how evidentiary-type arguments help at this point. Perhaps the Connecticut lawsuit is different? > Notes: > (a) Preferable to use of the Stevenson attack to showing such as to deflect > "you used the player key" accusation. > (b) I put in 2.1a and 2.1b as options for the design. 2.1b is interesting > as it enables only play and not copying, and thus is less suseptible to a > charge or enabling piracy. > (c) (2) should expressly require that the content be on a hard disk and NOT > a DVD. This means that the content would already have to be copied from the > DVD and THUS the TPM would have to have already been circumvented (since if > it were not, why is this content not on the DVD). So while the player would > allow playback of circumvent content -- it itself would not be > circumventing. Or one would have to argue that the circumvention is in the > playback not the copy control or --- it get bumpy for the P's from there > out. > > > Questions to be resolved: > (i) Is accessing the encrypted keys an act of circumvention? According to Kaplan, if you do it using an un-licensed implementation of the process, then: yes. > (ii) Are the required inputs easy accessible using licensed players? IIRC > these leave the drive in the unlocked state, but I'm not sure about the > keys. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 29 16:12:31 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA05676 for dvd-discuss-outgoing; Tue, 29 Aug 2000 16:12:31 -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 QAA05673 for ; Tue, 29 Aug 2000 16:12:29 -0400 Received: from travel-net.com (trj126.travel-net.com [207.176.160.126]) by mail.travel-net.com (8.9.3/8.9.3) with ESMTP id QAA06935 for ; Tue, 29 Aug 2000 16:13:06 -0400 Message-ID: <39AC195E.DE09E86F@travel-net.com> Date: Tue, 29 Aug 2000 16:13:18 -0400 From: Dan Steinberg 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] FCC: an outline 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 Harold Eaton wrote: > Eric Eldred wrote: > > >The FCC authority stems from the well-recognized concept that > >the airwaves are owned by the public and a limited bandwidth > >resource that can and should be regulated. > > Actually it's much broader than this. The FCC regulates telephones, > cable TV, etc. These are public networks, and so is the internet. > I don't think your argument will go far... Correction: (major correction). The internet is *not* a public network. were it to be designated as such it would be crushed under the weight of the ITU (not that they didnt try but thats another story in a a galaxy far far away).. No, it is more properly defined as an edge-controlled collection of private networks. > > _________________________________________________________________________ > Get Your Private, Free E-mail from MSN Hotmail at http://www.hotmail.com. > > Share information about yourself, create your own public profile at > http://profiles.msn.com. From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 29 16:14:33 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA05738 for dvd-discuss-outgoing; Tue, 29 Aug 2000 16:14:33 -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 QAA05735 for ; Tue, 29 Aug 2000 16:14:32 -0400 Message-ID: <20000829201419.14055.qmail@web513.mail.yahoo.com> Received: from [64.81.25.36] by web513.mail.yahoo.com; Tue, 29 Aug 2000 13:14:19 PDT Date: Tue, 29 Aug 2000 13:14:19 -0700 (PDT) From: Bryan Taylor Subject: [dvd-discuss] ZDNet drivel To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Very rarely do sheep make me angry. The author of this article is an exceptional sheep: http://www.zdnet.com/eweek/stories/general/0,11011,2618799,00.html __________________________________________________ Do You Yahoo!? Yahoo! Mail - Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 29 16:22:48 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA05811 for dvd-discuss-outgoing; Tue, 29 Aug 2000 16:22:48 -0400 Received: from mail.glenatl.glenayre.com (mail.glenatl.glenayre.com [157.230.160.51]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id QAA05808 for ; Tue, 29 Aug 2000 16:22:47 -0400 Received: from mindspring.com (mmcgown.glenatl.glenayre.com [157.230.162.136]) by mail.glenatl.glenayre.com (8.10.1/8.10.1) with ESMTP id e7TKMZX08706 for ; Tue, 29 Aug 2000 16:22:35 -0400 (EDT) Message-ID: <39AC1B8A.1BA8BF9A@mindspring.com> Date: Tue, 29 Aug 2000 16:22:34 -0400 From: mickeym X-Mailer: Mozilla 4.61 [en] (WinNT; I) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: RE: [dvd-discuss] Technology Review Column 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 The article smells like a troll to improve their hits. But here are some initial thoughts about some of his assertions: >Yet information technologies are often presumed to be in a different category altogether Because they are. Simple thought transmission on a wire versus material object. >In certain cases the public has the right, indeed the duty, to declare some fields off-limits for further >“improvements” because these innovations are just too costly. I can't think of any reason to stop thinking about something, other than fear or maybe boredom. >Advances in digital copying are creating tools that make it fast and easy to copy songs and movies, >downloaded from the Internet and then distributed by e-mail. Here is the "digital danger" lie, again. From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 29 16:25:21 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA05922 for dvd-discuss-outgoing; Tue, 29 Aug 2000 16:25:21 -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 QAA05919 for ; Tue, 29 Aug 2000 16:25:19 -0400 Received: by aero.org id <17146-4>; Tue, 29 Aug 2000 13:25:30 -0700 Received: from mhultra.aero.org(130.221.88.102) via SMTP by aero.org, id smtpdDLAa10294; Tue Aug 29 13:23:27 2000 Received: from ladir01.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Tue, 29 Aug 2000 13:13:36 -0700 Subject: Re: [dvd-discuss] Technology Review Column To: dvd-discuss@eon.law.harvard.edu X-Mailer: Lotus Notes Release 5.0.3 March 21, 2000 Message-Id: From: Michael.A.Rolenz@aero.org X-MIMETrack: Serialize by Router on ladir01/AeroNet/Aerospace/US(Release 5.0.3 |March 21, 2000) at 08/29/2000 01:13:35 PM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Date: Tue, 29 Aug 2000 13:23:35 -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Good point. False analogy is falacious apriori... But you make a the point, and a good one, that the discussion here is NOT about innovations that can be life threatening but about vested interests protecting their profits or for the convenience of some or the quality of entertainment some people desire. Hardly life threatening, threatening security, or threatening to freedom...although the DMCA has great potential for the latter. Sham Gardner To: dvd-discuss@eon.law.harvard.edu Sent by: cc: owner-dvd-discuss@eon.law.h Subject: Re: [dvd-discuss] Technology Review arvard.edu Column 08/29/00 12:52 PM Please respond to dvd-discuss On Tue, Aug 29, 2000 at 03:40:23PM -0400, Ravi Nanavati wrote: > I don't think anyone here thinks that rules don't apply to > innovators. The important questions are: what are those rules > and who determines them? Secret meetings and political lobbying > by the media industries or the copyright tradition in the > Constitution? Following Eric Eldred's example, if anyone > would like to help me compose a letter to the editor > rebutting this column I'd appreciate it. One thing that immediately sprang out at me: # Medical and pharmaceutical technologies are routinely regulated. # So are cars, planes and other transport innovations. All of these "innovations" pose an immediate threat to human life if imporoperly used. The same can hardly be said of audio and video compression techniques. Sham -- http://sites.inka.de/risctaker/DeCSS/ "The first speech censored, the first thought forbidden, the first freedom denied, chains us all irrevocably." (Jean-Luc Picard) From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 29 16:56:54 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA06308 for dvd-discuss-outgoing; Tue, 29 Aug 2000 16:56:54 -0400 Received: from mail.lemuria.org (lemuria.borgfelde.ricardo.de [195.244.103.65]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id QAA06305 for ; Tue, 29 Aug 2000 16:56:52 -0400 Received: from lemuria.org by mail.lemuria.org via rsmtp with bsmtp id for ; Tue, 29 Aug 2000 22:49:23 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Received: by lemuria.org via sendmail with stdio id for dvd-discuss@eon.law.harvard.edu; Tue, 29 Aug 2000 22:35:35 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Date: Tue, 29 Aug 2000 22:35:35 +0200 From: Tom Vogt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] FCC: an outline Message-ID: <20000829223535.A15720@lemuria.org> References: <39AC195E.DE09E86F@travel-net.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0pre3i In-Reply-To: <39AC195E.DE09E86F@travel-net.com> X-Privacy: If you can, please encrypt your mails - finger for key Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Dan Steinberg wrote: > Correction: (major correction). The internet is *not* a public network. were > it to be designated as such it would be crushed under the weight of the ITU > (not that they didnt try but thats another story in a a galaxy far far > away).. No, it is more properly defined as an edge-controlled collection of > private networks. which is exactly what it is. inter-net - the network that networks the networks, so to speak. "the internet" as an entity doesn't exist. -- "The net treats censorship as a malfunction and re-routes around it." (John Gilmore) From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 29 17:02:00 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA06811 for dvd-discuss-outgoing; Tue, 29 Aug 2000 17:02:00 -0400 Received: from inconnu.isu.edu (inconnu.isu.edu [134.50.8.55]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA06808 for ; Tue, 29 Aug 2000 17:01:50 -0400 Received: from localhost (galt@localhost) by inconnu.isu.edu (8.9.3/8.9.3) with ESMTP id PAA32211 for ; Tue, 29 Aug 2000 15:01:24 -0600 Date: Tue, 29 Aug 2000 15:01:24 -0600 (MDT) From: John Galt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] A question on copyright and free presses. In-Reply-To: <200008291644.MAA04355@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 My question is would a hydrofoil be a "circumvention device"? :) On Tue, 29 Aug 2000, Robert S. Thau wrote: > Arnold G. Reinhold writes: > > > One of the recent changes to the copyright act extended coverage to > > ship hulls. > > Which, believe it or not, was part of the DMCA (introduced in the > House, though there's precious little reference to it, if any, in > their floor debate, and none that I can find in the Commerce or > Judiciary committee reports --- was it introduced in the Rules > committee?!). > > The only reference I can find to it in debate is in the Senate debate > on the Conference Committee bill, which included vessel hull design > protection in deference to the House, but specifically limited it to > vessel hulls (the original House draft would have covered all > industrial designs), and includes these gems. From Sen. Leahy: > > Establishing narrow protection for vessel hulls in the > conference report should not be interpreted as signaling support, or > setting a precedent, for broader design protection that could > negatively affect the ability of consumers to obtain economical, > quality auto repairs. > > After all, it's not as if anyone's livelihood depends on being able to > obtain economical, quality repairs to a boat, right? > > And from Sen. Thurmond, of all people: > > I share Senator Hatch's concerns about this > controversial title. It contains not only industrial design protection, > which itself has created controversy in the past because of its impact > on consumers and others, but it protects functionality of vessel hulls > in addition to aesthetic aspects. It is my understanding that > functionality is protected from copying through patent, and this title > is a significant departure from that principle, although for a specific > narrow area. > > What is there to say besides "Article I, Section 8, clause 8"? > > rst > -- You have paid nothing for the preceding, therefore it's worth every penny you've paid for it: if you did pay for it, might I remind you of the immortal words of Phineas Taylor Barnum regarding fools and money? Who is John Galt? galt@inconnu.isu.edu, that's who! From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 29 17:10:57 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA07041 for dvd-discuss-outgoing; Tue, 29 Aug 2000 17:10:57 -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 RAA07037 for ; Tue, 29 Aug 2000 17:10:56 -0400 Received: from localhost (galt@localhost) by inconnu.isu.edu (8.9.3/8.9.3) with ESMTP id PAA32591 for ; Tue, 29 Aug 2000 15:10:44 -0600 Date: Tue, 29 Aug 2000 15:10:44 -0600 (MDT) From: John Galt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Hmmm... what's a key? In-Reply-To: <20000829200916.A24329@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 If it's the keys you want, wouldn't a copy of the controller ROM work just as well? I'm pretty sure that the player dealers will be glad to sell you one if you offer to pay a largely inflated price for it (10X cost minimum...), and they will probably even throw in a licensing agreement to you if you make it worth their while... On Tue, 29 Aug 2000, Sham Gardner wrote: > On Tue, Aug 29, 2000 at 01:56:14PM -0400, Robert S. Thau wrote: > > *) The player keys are available to anyone who buys a player; > > Kaplan describes players as a means of distributing those keys. > > This may not be significant, but only one player key is available in each > make of player to obtain all the keys with the DVDCCA's blessing you would > have to buy over 400 diffeent players. > > > *) All the other keys are physically embedded on the DVD disk which > > they supposedly protect. The "key-welded-to-the-lock" argument > > applies to these --- if the key to a room is bolted to the lock > > anyone can walk up to the room, turn the key, and achieve access, > > then it isn't really a key at all; it's a funny-looking doorknob. > > The keys embedded on the DVD are only available via the application of > a player, which must be lawfully obtained. > > Sham > > -- You have paid nothing for the preceding, therefore it's worth every penny you've paid for it: if you did pay for it, might I remind you of the immortal words of Phineas Taylor Barnum regarding fools and money? Who is John Galt? galt@inconnu.isu.edu, that's who! From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 29 17:23:02 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA07703 for dvd-discuss-outgoing; Tue, 29 Aug 2000 17:23:02 -0400 Received: from bigbrother.net (root@w131.z208177180.chi-il.dsl.cnc.net [208.177.180.131]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA07700 for ; Tue, 29 Aug 2000 17:23:01 -0400 Received: from localhost (sterno@localhost) by bigbrother.net (8.10.1/8.9.3) with ESMTP id e7TLNTA18253 for ; Tue, 29 Aug 2000 16:23:29 -0500 Date: Tue, 29 Aug 2000 16:23:29 -0500 (CDT) From: Steve Stearns To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Hmmm... what's a key? 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, 29 Aug 2000, John Galt wrote: > If it's the keys you want, wouldn't a copy of the controller ROM work just > as well? I'm pretty sure that the player dealers will be glad to sell > you one if you offer to pay a largely inflated price for it (10X cost > minimum...), and they will probably even throw in a licensing agreement to > you if you make it worth their while... Here's a thought. If you buy a DVD player for either your computer or your home entertainment center, that player has a licensed copy of the keys, right? So why wouldn't you be permitted to use DeCSS? If authorization is conveyed in the purchase of a player, authorization is granted when you buy your DVD drive. ---Steve From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 29 17:50:19 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA08216 for dvd-discuss-outgoing; Tue, 29 Aug 2000 17:50:19 -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 RAA08213 for ; Tue, 29 Aug 2000 17:50:18 -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 QAA00395 for ; Tue, 29 Aug 2000 16:50:44 -0500 (CDT) Message-ID: <39AC3014.464999AD@uic.edu> Date: Tue, 29 Aug 2000 16:50:12 -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] Hmmm... what's a key? Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Steve Stearns writes: > Here's a thought. If you buy a DVD player for > either your computer or your home entertainment > center, that player has a licensed copy of the keys, > right? So why wouldn't you be permitted to use > DeCSS? If authorization is conveyed in the purchase > of a player, authorization is granted when you buy your > DVD drive. Strangely enough, Kaplan's opinion supports this theory: Kaplan: > One cannot gain access to a CSS-protected work > on a DVD without application of the three keys that > are required by the software. ONE CANNOT LAWFULLY > GAIN ACCESS TO THE KEYS EXCEPT BY entering into > a license with the DVD CCA under authority granted > by the copyright owners or by PURCHASING A DVD > PLAYER OR DRIVE CONTAINING THE KEYS PURSUANT > TO SUCH A LICENSE. In consequence, under the express > terms of the statute, CSS effectively controls access to > copyrighted DVD movies. (emphasis added) I From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 29 18:25:47 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA08702 for dvd-discuss-outgoing; Tue, 29 Aug 2000 18:25:47 -0400 Received: from bigbrother.net (root@w131.z208177180.chi-il.dsl.cnc.net [208.177.180.131]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id SAA08699 for ; Tue, 29 Aug 2000 18:25:46 -0400 Received: from localhost (sterno@localhost) by bigbrother.net (8.10.1/8.9.3) with ESMTP id e7TMQEq21478 for ; Tue, 29 Aug 2000 17:26:14 -0500 Date: Tue, 29 Aug 2000 17:26:14 -0500 (CDT) From: Steve Stearns To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Hmmm... what's a key? In-Reply-To: <39AC3014.464999AD@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 Tue, 29 Aug 2000, John Schulien wrote: > Steve Stearns writes: > > Here's a thought. If you buy a DVD player for > > either your computer or your home entertainment > > center, that player has a licensed copy of the keys, > > right? So why wouldn't you be permitted to use > > DeCSS? If authorization is conveyed in the purchase > > of a player, authorization is granted when you buy your > > DVD drive. > Strangely enough, Kaplan's opinion supports this theory: *snip* I wonder how this would effect 2600 if they owned a DVD player. Certainly that would have implied authority to use DeCSS (according to Kaplan's opinion). But I suspect that this would not imply that they were allowed to distribute DeCSS. Or would it... Here's the thing. If I distribute a copy of DeCSS, who can actually use it? I mean DeCSS has one express purpose, decoding encrypted DVD's. So, in order for somebody to even make use of it they would, by definition, have to have a license to decode the discs. Can anybody cite one instance where somebody obtained and used DeCSS who did not otherwise have a licensed DVD player? Of course this argument is all well and good but it still wouldn't permit the availability of players which only used DeCSS. That is, if Sony decided to implement DeCSS in all of their players instead of paying a fee (to themselves?) they would be using an unlicensed, and in theory unauthorized player. Of course if Sony is the copyright holder couldn't they give themselves authorization to do this? Am I the only who finds the logic of this whole authorization scheme totally ludicrous? *sigh* ---Steve From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 29 18:51:21 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA08905 for dvd-discuss-outgoing; Tue, 29 Aug 2000 18:51:21 -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 SAA08902 for ; Tue, 29 Aug 2000 18:51:09 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id TAA15244 for dvd-discuss@eon.law.harvard.edu; Tue, 29 Aug 2000 19:01:09 -0400 Date: Tue, 29 Aug 2000 19:01:04 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Code and assassins Message-ID: <20000829190103.F12910@eldritchpress.org> References: <20000829170156.29100.qmail@web514.mail.yahoo.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <20000829170156.29100.qmail@web514.mail.yahoo.com>; from bryan_w_taylor@yahoo.com on Tue, Aug 29, 2000 at 10:01:56AM -0700 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, Aug 29, 2000 at 10:01:56AM -0700, Bryan Taylor wrote: >... > Some devices are 'speech devices', and their use cannot be considered > 'non speech' conduct. I consider a text editor and web server to be > among these. Indeed, there is no communication in the physical world > without some physical 'device' that participating it. Congress in > 1201(c)(4) states where it draws the line for the scope of devices it > considers in scope. > > When O'Brien burned his draft card, he used fire and the card as his > speech devices. It seems untenable to label these together as > inherently speech-devices. Additionally, his actions in some sense > infringed on the right of the governement to maintain the physical > integrity of a document that they own and provide. > > No one would suggest that O'Brien could not have replicated his draft > card and burned the copy. Indeed, this is what distinguishes flag > burning from draft card burning: you own the flag. With DeCSS, > distributing the speech inherent in a computer program uses only > traditional speech-devices and cannot be distinguished from writing and > sending a novel without examining its content -- that is what are the > particular speech elements used in the text file and what do they mean. A problem with O'Brien is that the FBI never had to prove the facts-- since it was a protest, defense stipulated the facts that the act was intended to signify resistance to the draft, and this would not be complete if in fact O'Brien only burned a representation. But this is not the case with Corley, is it? Where is the determination of facts, or is it a bright line that computer code is functional and thus not protected? If one followed O'Brien here, the court would have to determine if there was factually a significant government interest in regulation of the speech act. But in DMCA the only way to determine that is by reference to the Copyright Clause and First Amendment. One cannot assume that just because Congress passed the act that it is necessarily constitutional and not overbroad. > Are human vocal cords 'devices'? What about pencils? Could all devices > capable of leaving marks be banned to fight the substantial government > interest in reducing graffiti? "Flash paper" has been counted as a "device" that is mainly used to conceal illegal betting. However, it was at the same time noted that magicians have a legitimate use of "flash paper." Thus the courts need to decide these on a case-by-case basis in light of the particular facts in the situation. One particular software program could be banned if it could be shown to be marketed for an illegal use. However, if the same program had been marketed for a legal use (within Nevada) then it would be legal. Judging the case by the text of the software program itself, alone, does not help to distinguish the cases. In light of the reverse engineering aspects, banning all computer code distribution pertaining to decryption of copyrighted material is like banning all pencils because they can be used to write assassin notes (though I suppose those are usually constructed by cutting out text from a newspaper and pasting them together in another order). A problem then becomes how to mutate the logic into banning "all" because "one," more, or any can be used illegally. The clause "without any significant commercial use other than" is of no help, being at the same time too vague and too overbroad and completely missing the point when it comes to Free Software. From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 29 18:58:38 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA09705 for dvd-discuss-outgoing; Tue, 29 Aug 2000 18:58:38 -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 SAA09702 for ; Tue, 29 Aug 2000 18:58:27 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id TAA15260 for dvd-discuss@eon.law.harvard.edu; Tue, 29 Aug 2000 19:08:27 -0400 Date: Tue, 29 Aug 2000 19:08:22 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] DVD CCA Opposition to Pavlovich Quash Motion Message-ID: <20000829190821.G12910@eldritchpress.org> References: <200008272358.TAA20573@soggy-fibers.ai.mit.edu> <20000827230336.B11216@eldritchpress.org> <200008281217.IAA22545@soggy-fibers.ai.mit.edu> <20000828155742.B11959@eldritchpress.org> <200008291500.LAA03330@soggy-fibers.ai.mit.edu> <20000829121718.E12910@eldritchpress.org> <200008291701.NAA04509@soggy-fibers.ai.mit.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <200008291701.NAA04509@soggy-fibers.ai.mit.edu>; from rst@ai.mit.edu on Tue, Aug 29, 2000 at 01:01:58PM -0400 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, Aug 29, 2000 at 01:01:58PM -0400, Robert S. Thau wrote: >... > > Compare to the following from the Judiciary committee report: > > In a fact situation where the access is authorized, the traditional > defenses to copyright infringement, including fair use, would be > fully applicable. So, an individual would not be able to > circumvent in order to gain unauthorized access to a work, but > would be able to do so in order to make fair use of a work which he > or she has acquired lawfully. Can you rephrase this so it makes sense? Is "acquired lawfully" the same as "authorized access" or is there some other sense of "where the access is authorized"? And what does "circumvent" mean here? From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 29 19:01:10 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA09764 for dvd-discuss-outgoing; Tue, 29 Aug 2000 19:01:10 -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 TAA09761 for ; Tue, 29 Aug 2000 19:01:07 -0400 Received: (from paul@localhost) by dial161.roadrunner.com (8.8.7/8.8.7) id RAA02552 for dvd-discuss@eon.law.harvard.edu; Tue, 29 Aug 2000 17:03:11 -0600 Date: Tue, 29 Aug 2000 17:03:10 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Hmmm... what's a key? Message-ID: <20000829170309.A2223@localhost> References: <200008272358.TAA20573@soggy-fibers.ai.mit.edu> <20000827230336.B11216@eldritchpress.org> <200008281217.IAA22545@soggy-fibers.ai.mit.edu> <20000828155742.B11959@eldritchpress.org> <200008291500.LAA03330@soggy-fibers.ai.mit.edu> <200008291619.MAA04183@soggy-fibers.ai.mit.edu> <200008291756.NAA04709@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: <200008291756.NAA04709@soggy-fibers.ai.mit.edu>; from rst@ai.mit.edu on Tue, Aug 29, 2000 at 01:56:14PM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, Aug 29, 2000 at 01:56:14PM -0400, Robert S. Thau wrote: > Hmmm... on reflection, I'd like to take back some former comments: > > > The issue I was wondering about > > was the meaning of "authorized access", and the scope of the copyright > > owners' authority; and, unfortunately, there's nothing definitive in > > either report. The closest it comes is the phrase which a couple of > > Representatives read into their floor debate that: > > > > In the Committee's view, measures that can 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. > > I think that actually is useful. The defining characteristic of a > key, both in ordinary language (as applied to physical keys and > locks), and in cryptography, is that it is an item (either a physical > object or information) which is *made available only to authorized > individuals*, and used by some technical artifact (a lock or a cipher > engine) in order to distinguish between individuals who have or have > not been granted authority to access. > > Without that restriction, what's left of the Comittee's definition is > that a "key" is some artifact or information, and that, paraphrasing. This is a definition of "key" in terms of how they are managed. I think one can also define "key" in terms of their properties under attack. If one "attacks" a door handle, the first success (i.e. figuring out how to turn it) might require the investment of a large effort. Subsequent operations of the handle require a predictable and fixed amount of effort. If one "attacks" a key, the first success does basically nothing to help get subsequent successes. Each key requires an unpredictable and unknowable (although bounded) amount of effort. If course, the bound on effort might be astronomically large. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 29 19:04:12 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA09829 for dvd-discuss-outgoing; Tue, 29 Aug 2000 19:04:12 -0400 Received: from mta5.rcsntx.swbell.net (mta5.rcsntx.swbell.net [151.164.30.29]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id TAA09826 for ; Tue, 29 Aug 2000 19:04:11 -0400 Received: from swbell.net ([64.216.211.82]) by mta5.rcsntx.swbell.net (Sun Internet Mail Server sims.3.5.2000.01.05.12.18.p9) with ESMTP id <0G02006TZT9A3R@mta5.rcsntx.swbell.net> for dvd-discuss@eon.law.harvard.edu; Tue, 29 Aug 2000 18:00:46 -0500 (CDT) Date: Tue, 29 Aug 2000 17:52:54 -0500 From: Jolley Subject: Re: [dvd-discuss] (fwd) ALERT: FCC considers restricting digital To: dvd-discuss@eon.law.harvard.edu Message-id: <39AC3EC6.7C29CC4C@swbell.net> Organization: Southwestern Bell Internet Services MIME-version: 1.0 X-Mailer: Mozilla 4.72 [en]C-SBI-NC472 (Win98; U) Content-type: text/plain; charset=us-ascii Content-transfer-encoding: 7bit X-Accept-Language: en References: <39AA61CE.49277094@travel-net.com> <00082809134500.01422@frankenstein.lumbercartel.com> <39AA96A6.EB2EE452@mit.edu> <39AAFFB7.421B5014@swbell.net> <20000829092650.A13562@lemuria.org> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu And, in addition, get the USC to enact legislation to put a warning label on all DVDs similar to warning labels on cigarette packs. I think a warning similar to the one below would be nice: "WARNING: Purchase of this product does not transfer any right to view, make fair use, or use in any way of the content." Thanks Ravi for the link to Home Recording Rights Coalition http://www.hrrc.org/ Tom Vogt wrote: > > Jolley wrote: > > Perhaps we > > should organize a "consumer protection group" to bring this to the > > attention of the MPAA's enemies (their pirate customers.) We can > > create a nifty little logo similar to the way Intel had an "Intel > > inside" logo. Our logo would be heavily advertised and only allowed > > on content that does not restrict a consumer from actually making > > fair use of the content. > > all for it. I'm not rich, but I can offer free webhosting for this > project, including mailing lists and whatever else is needed. > From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 29 19:20:40 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA10032 for dvd-discuss-outgoing; Tue, 29 Aug 2000 19:20:40 -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 TAA10029 for ; Tue, 29 Aug 2000 19:20:29 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id TAA15330 for dvd-discuss@eon.law.harvard.edu; Tue, 29 Aug 2000 19:30:24 -0400 Date: Tue, 29 Aug 2000 19:30:19 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Hmmm... what's a key? Message-ID: <20000829193019.H12910@eldritchpress.org> References: <200008272358.TAA20573@soggy-fibers.ai.mit.edu> <20000827230336.B11216@eldritchpress.org> <200008281217.IAA22545@soggy-fibers.ai.mit.edu> <20000828155742.B11959@eldritchpress.org> <200008291500.LAA03330@soggy-fibers.ai.mit.edu> <200008291619.MAA04183@soggy-fibers.ai.mit.edu> <200008291756.NAA04709@soggy-fibers.ai.mit.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <200008291756.NAA04709@soggy-fibers.ai.mit.edu>; from rst@ai.mit.edu on Tue, Aug 29, 2000 at 01:56:14PM -0400 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, Aug 29, 2000 at 01:56:14PM -0400, Robert S. Thau wrote: > Hmmm... on reflection, I'd like to take back some former comments: > > > The issue I was wondering about > > was the meaning of "authorized access", and the scope of the copyright > > owners' authority; and, unfortunately, there's nothing definitive in > > either report. The closest it comes is the phrase which a couple of > > Representatives read into their floor debate that: > > > > In the Committee's view, measures that can 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. > > I think that actually is useful. The defining characteristic of a > key, both in ordinary language (as applied to physical keys and > locks), and in cryptography, is that it is an item (either a physical > object or information) which is *made available only to authorized > individuals*, and used by some technical artifact (a lock or a cipher > engine) in order to distinguish between individuals who have or have > not been granted authority to access. > > Without that restriction, what's left of the Comittee's definition is > that a "key" is some artifact or information, and that, paraphrasing. > > > measures that can 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 piece of information, or > > physical artifact] > > which is obviously vacuous. Well, it does seems circular. A "key" is what opens a "lock"; a "lock" is what is opened by a "key". (As soon as one introduces a computer, then everybody's eyes glaze over.) "New Scientist" Feedback column 26 Aug 2000 p88: "EU internal market ministers concluded four years of debate last week by agreeing legislation which defines honey as 'a natural sweet substance' produced by _Apis mellifera_ bees." "Mellifera" means honey-making, so what the ministers took four years to decide is that honey is made by honey-making bees. Similar accords are expected, after an appropriate amount of time, to clarify the role of milk-yielding cows, wool-providing sheep and pork-producing pigs." If this is a more correct interpretation of access, then one has to consider how a separate form of "consent" might be required other than just buying the keys. From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 29 19:25:55 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA10146 for dvd-discuss-outgoing; Tue, 29 Aug 2000 19:25:55 -0400 Received: from hotmail.com (f241.law9.hotmail.com [64.4.9.241]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id TAA10143 for ; Tue, 29 Aug 2000 19:25:54 -0400 Received: from mail pickup service by hotmail.com with Microsoft SMTPSVC; Tue, 29 Aug 2000 16:25:50 -0700 Received: from 4.54.10.118 by lw9fd.law9.hotmail.msn.com with HTTP; Tue, 29 Aug 2000 23:25:50 GMT X-Originating-IP: [4.54.10.118] From: "Harold Eaton" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] DVD CCA Opposition to Pavlovich Quash Motion Date: Tue, 29 Aug 2000 19:25:50 EDT Mime-Version: 1.0 Content-Type: text/plain; format=flowed Message-ID: X-OriginalArrivalTime: 29 Aug 2000 23:25:50.0757 (UTC) FILETIME=[77F31550:01C01210] Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Robert S. Thau wrote: > > > 7. If copyright holder authorizes access, then fair use can be made > > of work as usual. If fair use involves decryption, either user > > must gain separate consent from copyright holder for decryption, or > > else user must invent (but not "traffic in") such technology alone. > >Compare to the following from the Judiciary committee report: > > In a fact situation where the access is authorized, the traditional > defenses to copyright infringement, including fair use, would be > fully applicable. So, an individual would not be able to > circumvent in order to gain unauthorized access to a work, but > would be able to do so in order to make fair use of a work which he > or she has acquired lawfully. > >This implies that, even on Kaplan's reading of the law, fair use is a >defense to the *application* of DeCSS, though it would still fall >under the trafficking bans. I don't see it this way. Lets try to clarify the conference committee language a bit: ...where access is authorized... fair use is applicable. ..A person may not [legally] circumvent to gain unauthorized access [whether fair use or not], but a person may [legally?] circumvent to gain [authorized] access to make fair use of legally purchased works. There are 3 possible interpretations: (1) fair use == authorized access for legally purchased works, but they nevertheless call authorized access "circumvention"??, or (2) a person can be authorized AND circumvent. This seems strange within the statute's definition of circumvent (... without authority...), but perhaps there are multiple sorts of authority being talked about (and Kaplan says that statute isn't vague ;^), or (3) the committe report is self-contradictory (my favorite). (1) leads directly to: purchase work = authorized, which Kaplan has called "sophistry" (2) there are various weird scenarious possible here: you can be authorized to access, but not to decrypt (i.e. you are permitted to access the scrambled work). Speaking of which, I copied some encrypted VOB files to my hard drive and played them. Sort-of cool looking. (3) The lawmakers can't make heads-or-tails of the law, it must be vague. _________________________________________________________________________ Get Your Private, Free E-mail from MSN Hotmail at http://www.hotmail.com. Share information about yourself, create your own public profile at http://profiles.msn.com. From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 29 19:27:33 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA10193 for dvd-discuss-outgoing; Tue, 29 Aug 2000 19:27:33 -0400 Received: from dial173.roadrunner.com (sf-du173.cybermesa.com [209.12.75.173]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id TAA10190 for ; Tue, 29 Aug 2000 19:27:25 -0400 Received: (from paul@localhost) by dial173.roadrunner.com (8.8.7/8.8.7) id RAA02846 for dvd-discuss@eon.law.harvard.edu; Tue, 29 Aug 2000 17:29:30 -0600 Date: Tue, 29 Aug 2000 17:29:28 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Hmmm... what's a key? Message-ID: <20000829172928.A2567@localhost> References: <200008272358.TAA20573@soggy-fibers.ai.mit.edu> <20000827230336.B11216@eldritchpress.org> <200008281217.IAA22545@soggy-fibers.ai.mit.edu> <20000828155742.B11959@eldritchpress.org> <200008291500.LAA03330@soggy-fibers.ai.mit.edu> <200008291619.MAA04183@soggy-fibers.ai.mit.edu> <200008291756.NAA04709@soggy-fibers.ai.mit.edu> <20000829170309.A2223@localhost> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <20000829170309.A2223@localhost>; from fenimore@roadrunner.com on Tue, Aug 29, 2000 at 05:03:10PM -0600 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Oops. On Tue, Aug 29, 2000 at 05:03:10PM -0600, Paul Fenimore wrote: > This is a definition of "key" in terms of how they are managed. I think > one can also define "key" in terms of their properties under attack. > > If one "attacks" a door handle, the first success (i.e. figuring out > how to turn it) might require the investment of a large effort. Subsequent > operations of the handle require a predictable and fixed amount of effort. That should read, Subsequent operation of *another* handle requires ... From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 29 19:28:07 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA10207 for dvd-discuss-outgoing; Tue, 29 Aug 2000 19:28:07 -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 TAA10204 for ; Tue, 29 Aug 2000 19:28:06 -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 SAA11099 for ; Tue, 29 Aug 2000 18:28:32 -0500 (CDT) Message-ID: <39AC4701.6437ACA7@uic.edu> Date: Tue, 29 Aug 2000 18:28:01 -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] Hmmm... what's a key? Content-Type: text/plain; charset=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 cynically suggest that this be added to the FAQ: Question: What is a "key"? Answer: According to Kaplan, a "key" is the round device on the door that grants you authorization to enter a room. From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 29 19:35:52 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA10349 for dvd-discuss-outgoing; Tue, 29 Aug 2000 19:35:52 -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 TAA10346 for ; Tue, 29 Aug 2000 19:35:41 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id TAA15373 for dvd-discuss@eon.law.harvard.edu; Tue, 29 Aug 2000 19:45:41 -0400 Date: Tue, 29 Aug 2000 19:45:36 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] CNN article on full disclosure Message-ID: <20000829194536.I12910@eldritchpress.org> References: <39AC0DB4.D47433E8@uic.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <39AC0DB4.D47433E8@uic.edu>; from jms@uic.edu on Tue, Aug 29, 2000 at 02:23:32PM -0500 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, Aug 29, 2000 at 02:23:32PM -0500, John Schulien wrote: > >From the article: > > Others say telling about how software is vulnerable to > > hackers before companies have a chance to fix the > > problem only invites attack. > > > "There needs to be a Hippocratic Oath for security > > professionals," said Joel de la Garza of the Internet > > security company Securify. "A rule like 'first, do no > > harm' would be a very good thing, but highly unlikely." > > I'd rather see a Hippocratic Oath for professionals that > provide security products. A company that just "whips > up" a defective security model which then fails to protect > billions of dollars worth of other people's assets, instead > of using a peer-reviewed, publicly disclosed security > model is no different then a surgeon who just "makes > up" his surgery as he goes along, ignoring the entire > body of medical knowledge, and kills his patient. > > If the DVD-CCA were a doctor, it would be guilty of > malpractice. If policies about "full disclosure" only work one way, then nobody benefits. In 1980 I used a time-sharing system called The Source (similar to Compuserve). Once when I logged on I noticed a lot of mail that was not directed to me so I deleted it. Later in the same session I realized that my user ID was that of some other person. I called the security vice president at The Source to notify her of this problem. She responded that it was a known, long-term problem caused by modem hardware not hanging up one caller completely before accepting another, and they didn't have any fix for it. I suggested that she issue a notice to that effect to users who might otherwise have security of their use compromised. She declined, saying that it would cause a panic and possibly encourage illegal use. So I notified the other user politely and apologized, then I cancelled my subscription and asked them to delete all information in my account. From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 29 19:45:01 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA10491 for dvd-discuss-outgoing; Tue, 29 Aug 2000 19:45:01 -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 TAA10488 for ; Tue, 29 Aug 2000 19:45:00 -0400 Message-ID: <20000829234457.4845.qmail@web514.mail.yahoo.com> Received: from [64.81.25.36] by web514.mail.yahoo.com; Tue, 29 Aug 2000 16:44:57 PDT Date: Tue, 29 Aug 2000 16:44:57 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] Code and assassins To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-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: > If one followed O'Brien here, the court would have to determine if > there was factually a significant government interest in regulation > of the speech act. But in DMCA the only way to determine that is > by reference to the Copyright Clause and First Amendment. One cannot > assume that just because Congress passed the act that it is > necessarily constitutional and not overbroad. I just came across the case Horton v. Houston, 98-20031 (5th Cir. 1999) http://lw.bna.com/lw/19990713/9820031.htm I'll have it on my free speech page summarized the way I've been doing the others eventually. This case basically stands for the fact that the O'Brien test must be followed with due diligence, that each point must be proven. The final paragraph of it sounds like a good one to intro the part of the brief that says "As discussed above, O'Brien and intermediate scrutiny is the wrong standard to apply, but even if arguendo it does apply, judge Kaplan failed, woefully so, to produce a record that supports it's four points. Much is uncertain about the scope of First Amendment benefits and burdens in the cable industry. The directions presently available to us from the Supreme Court appear to require a standard less than that of strict scrutiny for Access's non-locally-produced fee rule, but they also require attention to the details of intermediate scrutiny. Regulations like this one which burden protected speech are not to be rubber-stamped. Based on the foregoing discussion, the case must be reversed and remanded for further factual development. > Thus the courts need to decide these on a case-by-case basis > in light of the particular facts in the situation. One particular > software program could be banned if it could be shown to be > marketed for an illegal use. However, if the same program had > been marketed for a legal use (within Nevada) then it would be > legal. Judging the case by the text of the software program > itself, alone, does not help to distinguish the cases. Aiding and abetting laws meet strict scrutiny exceptions since they require specific intent to assist another in the commission of a crime. This is what Jack Valenti's "handing out keys to the department store" rhetoric was aimed at doing. The judge realized they had no hope of meeting this standard, so he sui sponte lowered the bar and decided publishing is "non-speech" conduct. The correct standard is "incitement to imminent lawless action". Of course, the fact that the MPAA stipulates that they have no evidence of DeCSS actually being used for piracy makes trying to meet this standard an utter non-starter. (If they did find such a pirate, they should have to prove that 2600 knowingly contributed to their activity). __________________________________________________ Do You Yahoo!? Yahoo! Mail - Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 29 19:59:51 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA10620 for dvd-discuss-outgoing; Tue, 29 Aug 2000 19:59:51 -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 TAA10616 for ; Tue, 29 Aug 2000 19:59:40 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id UAA15432 for dvd-discuss@eon.law.harvard.edu; Tue, 29 Aug 2000 20:09:41 -0400 Date: Tue, 29 Aug 2000 20:09:36 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] ZDNet drivel Message-ID: <20000829200935.J12910@eldritchpress.org> References: <20000829201419.14055.qmail@web513.mail.yahoo.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <20000829201419.14055.qmail@web513.mail.yahoo.com>; from bryan_w_taylor@yahoo.com on Tue, Aug 29, 2000 at 01:14:19PM -0700 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, Aug 29, 2000 at 01:14:19PM -0700, Bryan Taylor wrote: > Very rarely do sheep make me angry. The author of this article is an > exceptional sheep: > > http://www.zdnet.com/eweek/stories/general/0,11011,2618799,00.html That one counts as a "troll" and is supposed to make you angry so you spend some time reading it and have your brain receive the hidden messages in the accompanying animated advertisements. However, if you are so inclined you may respond to any possible intelligent readers who trouble to post to the "Talkback" comment line below the article. The Tech Review article is not a troll and should be taken seriously. I got a chance to have a response (to a similar TR PR release from the eBook industry) printed, by first posting to the online TR Feedback feature and drawing myself to the attention of the editors. Anyone who wants the address of the editor, please ask. Even though I went to another college in Cambridge I think Tech Review is excellent and I hate it when they give out disinformation. From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 29 20:41:36 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA12367 for dvd-discuss-outgoing; Tue, 29 Aug 2000 20:41:36 -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 UAA12337 for ; Tue, 29 Aug 2000 20:41:24 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id UAA15488 for dvd-discuss@eon.law.harvard.edu; Tue, 29 Aug 2000 20:51:25 -0400 Date: Tue, 29 Aug 2000 20:51:20 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] DVD CCA Opposition to Pavlovich Quash Motion Message-ID: <20000829205120.K12910@eldritchpress.org> References: Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: ; from haceaton@hotmail.com on Tue, Aug 29, 2000 at 07:25:50PM -0400 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, Aug 29, 2000 at 07:25:50PM -0400, Harold Eaton wrote: > Robert S. Thau wrote: > > > > > 7. If copyright holder authorizes access, then fair use can be made > > > of work as usual. If fair use involves decryption, either user > > > must gain separate consent from copyright holder for decryption, or > > > else user must invent (but not "traffic in") such technology alone. > > > >Compare to the following from the Judiciary committee report: > > > > In a fact situation where the access is authorized, the traditional > > defenses to copyright infringement, including fair use, would be > > fully applicable. So, an individual would not be able to > > circumvent in order to gain unauthorized access to a work, but ^^^^^^^^^^ > > would be able to do so in order to make fair use of a work which he ^^^^^^^^ > > or she has acquired lawfully. It appears to me that "to do so" ought to be replaceable with "to circumvent" here, in order to make grammatical sense. (I'm leaving out the "to gain..." part--maybe I shouldn't.) If so, then we now have some "circumvention" that is the same as "authorized" instead of "unauthorized", because the "acquired lawfully" is either the same as authorized access or some new ingredient that changes "circumvent" into "fair use"? (Take away "which he or she has acquired lawfully" and the whole thing makes no grammatical sense, nor logical in any sense.) Or maybe "circumvent" in the last use is being used *only* in the sense of copy control and not access? But that is nonsense, because the first use of "circumvent" is obviously access. The trouble is the first four words, "in a fact situation." Kaplan might argue that Corley does not raise a fact situation, but only the separate issue of trafficking in circumvention. (But how can trafficking in circumvention be considered illegal if one can't ever be sure what circumvention is?) I go with Harold's conclusion the whole law is nonsense, and Congress passed a self-contradictory law that cannot be enforced. I would maintain that a few in Congress realized that (Bliley?) but it was nevertheless pushed through without full discussion that could reveal this. From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 29 21:02:42 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA13539 for dvd-discuss-outgoing; Tue, 29 Aug 2000 21:02:42 -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 VAA13536 for ; Tue, 29 Aug 2000 21:02:41 -0400 Message-ID: <20000830010238.23496.qmail@web515.mail.yahoo.com> Received: from [64.81.25.36] by web515.mail.yahoo.com; Tue, 29 Aug 2000 18:02:38 PDT Date: Tue, 29 Aug 2000 18:02:38 -0700 (PDT) From: Bryan Taylor Subject: [dvd-discuss] Name.Space v Network Solutions To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-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 case that pondered the mixing of functional and speech elements in the context of DNS names. The case concerned the addition of additional genereic top level domains gTLD's, of which there are (or were) seven: (".com," ".net," ".org," ".edu," ".gov," ".int," and ".mil,"). Anyway, Name.Space wanted others and made a free speech argument for it. The Circuit Court disagreed with the district court and held that DNS names are protected speech, but that the choice of gTLD was not, but only because at present there are only 7 choices. In doing so, it pondered the mix of speech and function. Those of you interested in DNS issues might want to read this case. ____________________ Name.Space v Network Solutions No. 99-6080, (2nd Cir. 2000) http://www.tourolaw.edu/2ndCircuit/January00/99-6080.html The district court adopted an analogy between Internet alphanumeric addresses and telephone numbers, and held that domain names are akin to source identifiers rather than to communicative messages. See pgMedia, 51 F. Supp. 2d at 407-08. We disagree. The existing gTLDs are not protected speech, but only because the current DNS and Amendment No. 11 limit them to three-letter afterthoughts such as .com and .net, which are lacking in expressive content. The district court did not address the possibility that longer and more contentful gTLDs like ".jones_for_president" and ".smith_for_senate" may constitute protected speech, such as political speech or parody. The Internet in general, and the DNS in particular, is marked by extraordinary plasticity. The DNS has already undergone considerable change in the Internet's brief history to date, and may undergo even more radical changes in the near future under the auspices of ICANN and DNSO. There is nothing inherent in the architecture of the Internet that prevents new gTLDs from constituting expressive speech. How broad the permissible bandwidth of expression is in this context depends on the future direction of the DNS. Further, the functionality of domain names does not automatically place them beyond the reach of the First Amendment. Although domain names do have a functional purpose, whether the mix of functionality and expression is "sufficiently imbued with the elements of communication" depends on the domain name in question, the intentions of the registrant, the contents of the website, and the technical protocols that govern the DNS. [14] Spence v. Washington, 418 U.S. 405, 409-10 (1974) ("[T]he context in which a symbol is used for purposes of expression is important, for the context may give meaning to the symbol." (citation omitted)). Functionality and expression are therefore not mutually exclusive: for example, automobile license plates have a functional purpose, but that function can be served as well by vanity plates, which in a small way can also be expressive. Similarly, domain names may be employed for a variety of communicative purposes with both functional and expressive elements, ranging from the truly mundane street address or telephone number-like identification of the specific business that is operating the website, to commercial speech and even core political speech squarely implicating First Amendment concerns. [Footnote 14] In conducting this analysis, it may be instructive to bear in mind that "a narrow, succinctly articulable message is not a condition of constitutional protection, which if confined to expressions conveying a 'particularized message,' . . . would never reach the unquestionably shielded painting of Jackson Pollock, music of Arnold Schoenberg, or Jabberwocky verse of Lewis Carroll." Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557, 569 (1995). __________________________________________________ Do You Yahoo!? Yahoo! Mail - Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 29 21:09:12 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA14119 for dvd-discuss-outgoing; Tue, 29 Aug 2000 21:09:12 -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 VAA14116 for ; Tue, 29 Aug 2000 21:09:11 -0400 Message-ID: <20000830010908.28318.qmail@web512.mail.yahoo.com> Received: from [64.81.25.36] by web512.mail.yahoo.com; Tue, 29 Aug 2000 18:09:08 PDT Date: Tue, 29 Aug 2000 18:09:08 -0700 (PDT) From: Bryan Taylor Subject: [dvd-discuss] What happened at the motion to quash hearing? To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Matt Pavlovich's motion to quash hearing was this morning at 9am. Does anyone know what happened? __________________________________________________ Do You Yahoo!? Yahoo! Mail - Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 29 21:20:25 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA14416 for dvd-discuss-outgoing; Tue, 29 Aug 2000 21:20:25 -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 VAA14413 for ; Tue, 29 Aug 2000 21:20:24 -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 VAA12412 for ; Tue, 29 Aug 2000 21:20:51 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id VAA06807; Tue, 29 Aug 2000 21:20:51 -0400 (EDT) Date: Tue, 29 Aug 2000 21:20:51 -0400 (EDT) Message-Id: <200008300120.VAA06807@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] DVD CCA Opposition to Pavlovich Quash Motion In-Reply-To: <20000829190821.G12910@eldritchpress.org> References: <200008272358.TAA20573@soggy-fibers.ai.mit.edu> <20000827230336.B11216@eldritchpress.org> <200008281217.IAA22545@soggy-fibers.ai.mit.edu> <20000828155742.B11959@eldritchpress.org> <200008291500.LAA03330@soggy-fibers.ai.mit.edu> <20000829121718.E12910@eldritchpress.org> <200008291701.NAA04509@soggy-fibers.ai.mit.edu> <20000829190821.G12910@eldritchpress.org> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Eric Eldred writes: > > Compare to the following from the Judiciary committee report: > > > > In a fact situation where the access is authorized, the traditional > > defenses to copyright infringement, including fair use, would be > > fully applicable. So, an individual would not be able to > > circumvent in order to gain unauthorized access to a work, but > > would be able to do so in order to make fair use of a work which he > > or she has acquired lawfully. > > Can you rephrase this so it makes sense? Is "acquired lawfully" > the same as "authorized access" or is there some other sense of > "where the access is authorized"? And what does "circumvent" > mean here? I read it as saying, roughly, "fair use is a defense to circumvention if the TPM being circumvented would have granted *some* sort of access to the work, in the ordinary course of its operation." rst From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 29 21:43:46 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA14955 for dvd-discuss-outgoing; Tue, 29 Aug 2000 21:43:46 -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 VAA14952 for ; Tue, 29 Aug 2000 21:43:45 -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 VAA13971 for ; Tue, 29 Aug 2000 21:44:12 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id VAA06936; Tue, 29 Aug 2000 21:44:12 -0400 (EDT) Date: Tue, 29 Aug 2000 21:44:12 -0400 (EDT) Message-Id: <200008300144.VAA06936@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Hmmm... what's a key? In-Reply-To: <20000829172928.A2567@localhost> References: <200008272358.TAA20573@soggy-fibers.ai.mit.edu> <20000827230336.B11216@eldritchpress.org> <200008281217.IAA22545@soggy-fibers.ai.mit.edu> <20000828155742.B11959@eldritchpress.org> <200008291500.LAA03330@soggy-fibers.ai.mit.edu> <200008291619.MAA04183@soggy-fibers.ai.mit.edu> <200008291756.NAA04709@soggy-fibers.ai.mit.edu> <20000829170309.A2223@localhost> <20000829172928.A2567@localhost> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Paul Fenimore writes: > On Tue, Aug 29, 2000 at 05:03:10PM -0600, Paul Fenimore wrote: > > This is a definition of "key" in terms of how they are managed. I think > > one can also define "key" in terms of their properties under attack. Not so much how they are managed as what they do. Consider a key-card system where individuals are issued unique, identifying keys, and electronic locks on the doors read the card, determine whether the individual holding that card has authority to pass that door, and opens it if so. These keys are managed very differently from the traditional sort; for instance, their distribution is not limited to the list of individuals who are authorized to pass a *particular* door. But the combined system of locks and keys still has the effect of limiting which individuals can pass which doors --- my test. Which CSS flunks --- a keycard will prevent some people from passing some doors, but CSS won't prevent *any* player from playing *any* DVD. Which brings us back to the official slogan of this subthread: "It's not a key, it's a doorknob". (BTW, I believe there actually are rough analogies to this sort of thing even with physical locks, in systems where the locks to a building complex have multiple master keys which grant access to different sets of rooms --- but the access control can't be as fine-grained as with keycards). > > If one "attacks" a door handle, the first success (i.e. figuring out > > how to turn it) might require the investment of a large effort. Subsequent > > operations of the handle require a predictable and fixed amount of effort. It's not completely clear to me how this standard would apply to the keycard system which I described above... but maybe I'm dense. Note also that my test is carefully phrased to avoid falling into the "trivial to defeat" trap --- we figured out long ago that the only thing that matters to the DMCA's definitions of "effective" is what a technological measure does "in the ordinary course of its operation"; the amount of effort required to defeat it is irrelevant. > That should read, > > Subsequent operation of *another* handle requires ... The typo monster... fear it! rst From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 29 21:45:48 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA15069 for dvd-discuss-outgoing; Tue, 29 Aug 2000 21:45:48 -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 VAA15066 for ; Tue, 29 Aug 2000 21:45:47 -0400 Message-ID: <20000830014544.16781.qmail@web511.mail.yahoo.com> Received: from [64.81.25.36] by web511.mail.yahoo.com; Tue, 29 Aug 2000 18:45:44 PDT Date: Tue, 29 Aug 2000 18:45:44 -0700 (PDT) From: Bryan Taylor Subject: [dvd-discuss] Bad Frog To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Those of you who contemplate kicking back with a cold one and flipping the judge a finger should consider doing so with a brew from Bad Frog Brewery. :-] [Read the case] Those of you who want to see an example where "narrow tailoring" rebuffs speech restrictions that are "more extensive than necessary" in favor of "less intrusive alternatives" should read: Bad Frog Brewery, Inc. v. N.Y. Liquor Authority No. 97-7949 (2d Cir. 1998) http://www.tourolaw.edu/2ndCircuit/January98/97-79490.html __________________________________________________ Do You Yahoo!? Yahoo! Mail - Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 29 22:21:05 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA15230 for dvd-discuss-outgoing; Tue, 29 Aug 2000 22:21:05 -0400 Received: from mta5.rcsntx.swbell.net (mta5.rcsntx.swbell.net [151.164.30.29]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id WAA15227 for ; Tue, 29 Aug 2000 22:21:04 -0400 Received: from swbell.net ([64.216.211.82]) by mta5.rcsntx.swbell.net (Sun Internet Mail Server sims.3.5.2000.01.05.12.18.p9) with ESMTP id <0G0300FBO27Z2A@mta5.rcsntx.swbell.net> for dvd-discuss@eon.law.harvard.edu; Tue, 29 Aug 2000 21:14:23 -0500 (CDT) Date: Tue, 29 Aug 2000 21:06:31 -0500 From: Jolley Subject: Re: [dvd-discuss] Name.Space v Network Solutions To: dvd-discuss@eon.law.harvard.edu Message-id: <39AC6C27.F4FB7C4B@swbell.net> Organization: Southwestern Bell Internet Services MIME-version: 1.0 X-Mailer: Mozilla 4.72 [en]C-SBI-NC472 (Win98; U) Content-type: text/plain; charset=us-ascii Content-transfer-encoding: 7bit X-Accept-Language: en References: <20000830010238.23496.qmail@web515.mail.yahoo.com> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Check out what 2600 has done. I don't know the current status. http://www.2600.com/news/2000/0508.html Bryan Taylor wrote: > > Here's an interesting case that pondered the mixing of functional and > speech elements in the context of DNS names. The case concerned the > addition of additional genereic top level domains gTLD's, of which > there are (or were) seven: (".com," ".net," ".org," ".edu," ".gov," > ".int," and ".mil,"). > > Anyway, Name.Space wanted others and made a free speech argument for > it. The Circuit Court disagreed with the district court and held that > DNS names are protected speech, but that the choice of gTLD was not, > but only because at present there are only 7 choices. In doing so, it > pondered the mix of speech and function. > > Those of you interested in DNS issues might want to read this case. > From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 29 22:29:04 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA15357 for dvd-discuss-outgoing; Tue, 29 Aug 2000 22:29:04 -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 ESMTP id WAA15354 for ; Tue, 29 Aug 2000 22:29:03 -0400 Received: from mail pickup service by hotmail.com with Microsoft SMTPSVC; Tue, 29 Aug 2000 19:29:00 -0700 Received: from 38.30.238.74 by lw9fd.law9.hotmail.msn.com with HTTP; Wed, 30 Aug 2000 02:29:00 GMT X-Originating-IP: [38.30.238.74] From: "Harold Eaton" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] DVD CCA Opposition to Pavlovich Quash Motion Date: Tue, 29 Aug 2000 22:29:00 EDT Mime-Version: 1.0 Content-Type: text/plain; format=flowed Message-ID: X-OriginalArrivalTime: 30 Aug 2000 02:29:00.0156 (UTC) FILETIME=[0E244BC0:01C0122A] Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Robert S. Thau wrote: >I read it as saying, roughly, "fair use is a defense to circumvention >if the TPM being circumvented would have granted *some* sort of access >to the work, in the ordinary course of its operation." That's an interesting reading, possibly even a sensible one. But the only support for it in the statute is the contradiction between 1201(a)(1) and 1201(c)(1). But if that is what the statute means, why does it not apply to 1201 (a)(2) and 1201 (b) ? Perhaps because it's vague? _________________________________________________________________________ Get Your Private, Free E-mail from MSN Hotmail at http://www.hotmail.com. Share information about yourself, create your own public profile at http://profiles.msn.com. From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 29 22:51:36 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA15468 for dvd-discuss-outgoing; Tue, 29 Aug 2000 22:51:36 -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 WAA15465 for ; Tue, 29 Aug 2000 22:51:20 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id XAA15653 for dvd-discuss@eon.law.harvard.edu; Tue, 29 Aug 2000 23:01:22 -0400 Date: Tue, 29 Aug 2000 23:01:17 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] DVD CCA Opposition to Pavlovich Quash Motion Message-ID: <20000829230117.M12910@eldritchpress.org> References: <200008272358.TAA20573@soggy-fibers.ai.mit.edu> <20000827230336.B11216@eldritchpress.org> <200008281217.IAA22545@soggy-fibers.ai.mit.edu> <20000828155742.B11959@eldritchpress.org> <200008291500.LAA03330@soggy-fibers.ai.mit.edu> <20000829121718.E12910@eldritchpress.org> <200008291701.NAA04509@soggy-fibers.ai.mit.edu> <20000829190821.G12910@eldritchpress.org> <200008300120.VAA06807@soggy-fibers.ai.mit.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <200008300120.VAA06807@soggy-fibers.ai.mit.edu>; from rst@ai.mit.edu on Tue, Aug 29, 2000 at 09:20:51PM -0400 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, Aug 29, 2000 at 09:20:51PM -0400, Robert S. Thau wrote: > Eric Eldred writes: > > > Compare to the following from the Judiciary committee report: > > > > > > In a fact situation where the access is authorized, the traditional > > > defenses to copyright infringement, including fair use, would be > > > fully applicable. So, an individual would not be able to > > > circumvent in order to gain unauthorized access to a work, but > > > would be able to do so in order to make fair use of a work which he > > > or she has acquired lawfully. > > > > Can you rephrase this so it makes sense? Is "acquired lawfully" > > the same as "authorized access" or is there some other sense of > > "where the access is authorized"? And what does "circumvent" > > mean here? > > I read it as saying, roughly, "fair use is a defense to circumvention > if the TPM being circumvented would have granted *some* sort of access > to the work, in the ordinary course of its operation." Yes, that does seem better, though it's not exactly the same as my earlier (7). But I don't think it fully comprehends the second sentence, with its various clauses. Because it would have then to be something like: 1. Fair use is a defense against infringement when access is authorized. 2. Fair use is not a defense against gaining unauthorized access. 3. Fair use is a defense against circumvention when the work has been legally acquired. But if "circumvention" in 3 is the same as "unauthorized access" in 2 then the paragraph makes no sense. We have no idea what 3 says except the opposite of 2. So we have to consider the import of "legally acquired"--does this mean the same thing as "authorized access", is it an amplification or a restriction, or what? So is this any better?-- A. Fair use is a defense against infringement when access is authorized. B. Fair use is not a defense against gaining unauthorized access. C. Fair use is a defense against gaining unauthorized access when the work has been legally acquired. One has to wonder about the distinction between "infringement" and "gaining unauthorized access." If we replace in A the first with the second we get: i. Fair use is a defense against gaining unauthorized access when access is authorized. ii. Fair use is not a defense against gaining unauthorized access when access is unauthorized. iii. Fair use is a defense against gaining unauthorized access when the work has been legally acquired. This is no better. Okay, I'm lost... why isn't all this simply nonsense? From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 29 22:57:39 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA15688 for dvd-discuss-outgoing; Tue, 29 Aug 2000 22:57:39 -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 WAA15685 for ; Tue, 29 Aug 2000 22:57:38 -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 WAA18305 for ; Tue, 29 Aug 2000 22:58:05 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id WAA07506; Tue, 29 Aug 2000 22:58:05 -0400 (EDT) Date: Tue, 29 Aug 2000 22:58:05 -0400 (EDT) Message-Id: <200008300258.WAA07506@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] DVD CCA Opposition to Pavlovich Quash Motion In-Reply-To: References: Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Harold Eaton writes: > Robert S. Thau wrote: > > >I read it as saying, roughly, "fair use is a defense to circumvention > >if the TPM being circumvented would have granted *some* sort of access > >to the work, in the ordinary course of its operation." > > That's an interesting reading, possibly even a sensible one. > But the only support for it in the statute is the contradiction > between 1201(a)(1) and 1201(c)(1). But if that is what the > statute means, why does it not apply to 1201 (a)(2) and 1201 (b) ? > Perhaps because it's vague? Well, remember, the courts enforce vague laws all the time --- I believe legislative history is used by the courts when necessary to clear up ambiguities in the language of the statute (and may be ignored when the language of the statute is clear). But looking back at the full report, it's possible I may have trimmed the text too aggressively. The full paragraph is: Paragraph (a)(1) does not apply 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. In a fact situation where the access is authorized, the traditional defenses to copyright infringement, including fair use, would be fully applicable. So, an individual would not be able to circumvent in order to gain unauthorized access to a work, but would be able to do so in order to make fair use of a work which he or she has acquired lawfully. So it's possible that they mean that an individual "would not be able to circumvent" an access control, "but would be able to [circumvent]" other technological measures (e.g. region coding). Which is odd from the point of view of the MPAA, because the sole point of CSS, from their point of view, is to be tied to other technical measures --- but it may make more sense. On the other hand, if that's what it means, then it's poorly worded even by the word-salad standard of the DMCA; the implication of "to do so" is that the same action is taken in both cases --- that the same technical measure is being circumvented. rst From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 29 23:18:16 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA16105 for dvd-discuss-outgoing; Tue, 29 Aug 2000 23:18:16 -0400 Received: from mercury.clearway.com (c100.clearway.com [199.103.231.100]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id XAA16102 for ; Tue, 29 Aug 2000 23:18:16 -0400 Received: by c100.clearway.com with Internet Mail Service (5.5.2650.21) id ; Tue, 29 Aug 2000 23:21:56 -0400 Message-ID: From: Leland Ray To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] DVD CCA Opposition to Pavlovich Quash Motion Date: Tue, 29 Aug 2000 23:21:46 -0400 MIME-Version: 1.0 X-Mailer: Internet Mail Service (5.5.2650.21) Content-Type: text/plain; charset="iso-8859-1" Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Nothing makes sense unless you consider access to the work a pure commerce activity. 1201 talks about two kinds of TPMs, those that control access and those that control a right. Logically, there must also be other technological measures that control neither access nor a right. Access TPMs have full protection under the DMCA. According to Kaplan (citing the Judiciary Committee Report), fair use is not a defense to circumvention. Right TPMs have some protection under the DMCA. Fair use is a defense to circumvention. Other TPMs (or TMs) are not mentioned in the DMCA. They may be protected via trade secrets or patents, but the DMCA neither encourages nor discourages them. Here are some thoughts in regards to this: * Suppose I shoplift a DVD, and play it on my system. In addition to shoplifting, I could be hit with a circumvention charge under 1201. * Region coding is a rights TPM. The copyright owner uses a region code to declare which places the DVD may be sold. Because of the first sale rule, the copyright owner cannot prohibit the buyer from reselling it outside of the original region, nor can the copyright owner prohibit someone from fair use. * The udf filesystem is a "TPM" that is not covered by 1201. There is no crime to circumventing it by executing DeCSS on Windows and playing the resulting mp2 on Linux. The first point is just a restatement of something we have argued many times. CSS is not a TPM meriting full protection, at best, it is a right TPM (though this could also be debated). From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 29 23:31:50 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA16273 for dvd-discuss-outgoing; Tue, 29 Aug 2000 23:31:50 -0400 Received: from dial214.roadrunner.com (sf-du214.cybermesa.com [209.12.75.214]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id XAA16270 for ; Tue, 29 Aug 2000 23:31:46 -0400 Received: (from paul@localhost) by dial214.roadrunner.com (8.8.7/8.8.7) id VAA00668 for dvd-discuss@eon.law.harvard.edu; Tue, 29 Aug 2000 21:33:41 -0600 Date: Tue, 29 Aug 2000 21:33:41 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Hmmm... what's a key? Message-ID: <20000829213340.A500@localhost> References: <200008272358.TAA20573@soggy-fibers.ai.mit.edu> <20000827230336.B11216@eldritchpress.org> <200008281217.IAA22545@soggy-fibers.ai.mit.edu> <20000828155742.B11959@eldritchpress.org> <200008291500.LAA03330@soggy-fibers.ai.mit.edu> <200008291619.MAA04183@soggy-fibers.ai.mit.edu> <200008291756.NAA04709@soggy-fibers.ai.mit.edu> <20000829170309.A2223@localhost> <20000829172928.A2567@localhost> <200008300144.VAA06936@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: <200008300144.VAA06936@soggy-fibers.ai.mit.edu>; from rst@ai.mit.edu on Tue, Aug 29, 2000 at 09:44:12PM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, Aug 29, 2000 at 09:44:12PM -0400, Robert S. Thau wrote: > Paul Fenimore writes: [ ... ] > Not so much how they are managed as what they do. An important difference. Thanks for the correction. [ ... ] > But the combined system of locks and keys still has the effect of > limiting which individuals can pass which doors --- my test. Which > CSS flunks --- a keycard will prevent some people from passing some > doors, but CSS won't prevent *any* player from playing *any* DVD. I'm asking if learning to open one door helps to open other doors with a *predictable* amount of effort. > Which brings us back to the official slogan of this subthread: "It's > not a key, it's a doorknob". Yup. The scheme you're suggesting and the one I'm suggesting agree on that point. > (BTW, I believe there actually are rough analogies to this sort of > thing even with physical locks, in systems where the locks to a > building complex have multiple master keys which grant access to > different sets of rooms --- but the access control can't be as > fine-grained as with keycards). > > > If one "attacks" a door handle, the first success (i.e. figuring out > > how to turn it) might require the investment of a large effort. > > Subsequent > > operations of the handle require a predictable and fixed amount of > > effort. > > It's not completely clear to me how this standard would apply to the > keycard system which I described above... but maybe I'm dense. Nope. If there was _a_ secret that opened most or all of the doors, then I would call that secret/ident-info a "knob." > Note also that my test is carefully phrased to avoid falling into the > "trivial to defeat" trap --- we figured out long ago that the only > thing that matters to the DMCA's definitions of "effective" is what a > technological measure does "in the ordinary course of its operation"; > the amount of effort required to defeat it is irrelevant. > > > That should read, > > > > Subsequent operation of *another* handle requires ... > > The typo monster... fear it! I think the tests I've outlined also avoid the "trivial to defeat" trap(?). The difference I'm concentrating on is whether or not it is possible to *predict* ahead of time, within a narrow bound rather than simply an upper bound, how much time/effort/resources will be required to open the door. If in opening the first door I learn information that makes opening subsequent doors basically a constant-effort proposition, then I say "door knob." If the effort varies from zero to an upper bound, and the statistics are set simply by saying that all permutations are about equally likely to open a door, _and_ each door has a random secret, then I say "key." It is possible to have a door knob that requires little effort to open, and there can be very complicated knobs requiring lots of effort, but the effort is constant from one door to the next. If something you learn from one door makes opening the next one a "predictable," then its a knob. People usually call knobs that require a small effort to operate, "good." Knobs that require a large effort are "tricky," or "bad," or a "puzzle." There are keys which require little effort to brute-force, and those which require, on average, great effort. The crypto associated with a key is usually called "strong" when brute-force is approx. the fastest way to get in, and brute-force takes a long time/many resources. When there are only a few permutations, the key is called "weak" or the crypto is called "bad." But it is still a key. This categorization scheme has an interesting property. A general pass key is a "knob". That might or might not be a problem with the classification. I'm not sure. This doesn't fit exactly with the common notions of "knob" and "key." Perhaps skeleton keys are really keys and not "knobs," I'm not sure. I don't think these "who gets in where" and "does opening one door *predictably* open them all?" classifications agree in all cases, but they do agree about CSS: door knob! Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Tue Aug 29 23:43:55 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA16386 for dvd-discuss-outgoing; Tue, 29 Aug 2000 23:43:55 -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 XAA16383 for ; Tue, 29 Aug 2000 23:43:54 -0400 Received: from ppp.anonymizer.com (c04-163.015.popsite.net [64.24.75.163]) by cyberpass.net (8.8.8/8.7.3) with ESMTP id UAA25469 for ; Tue, 29 Aug 2000 20:46:24 -0700 (PDT) Message-Id: <4.3.2.7.2.20000829204022.00a97910@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, 29 Aug 2000 20:44:14 -0700 To: dvd-discuss@eon.law.harvard.edu From: "James S. Tyre" Subject: Re: [dvd-discuss] 3rd Party Speech Veto Unconsitutional -- Young v Simi Valley In-Reply-To: <20000829155734.13627.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 08:57 AM 8/29/2000 -0700, Bryan Taylor wrote: >--- "James S. Tyre" wrote: > > > > Did you happen to notice which law firm represented Simi Valley? > >Bert H. Deixler, Proskauer Rose, Los Angeles, California, for >the defendant-appellant. > >Heh, heh, heh. Do you get bonus points when for 'rubbing their nose in >it'? Is it considered bad form to point this out in a brief? Probably it would be here. I've done it if the attorney, or the client, has taken a position in another case which is contrary to the position in the current case, but other than that, it would just come off as a cheap shot. -------------------------------------------------------------------- James S. Tyre mailto:jstyre@jstyre.com 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 Aug 29 23:44:54 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA16417 for dvd-discuss-outgoing; Tue, 29 Aug 2000 23:44:54 -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 XAA16413 for ; Tue, 29 Aug 2000 23:44:53 -0400 Received: from localhost (localhost [[UNIX: localhost]]) by rjmconsulting.com (8.9.3/8.9.3) id UAA27675 for dvd-discuss@eon.law.harvard.edu; Tue, 29 Aug 2000 20:54:03 -0700 From: Russell (James) Miller To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Hmmm... what's a key? Date: Tue, 29 Aug 2000 20:53:32 -0700 X-Mailer: KMail [version 1.0.29.2] Content-Type: text/plain References: <200008272358.TAA20573@soggy-fibers.ai.mit.edu> <200008300144.VAA06936@soggy-fibers.ai.mit.edu> <20000829213340.A500@localhost> In-Reply-To: <20000829213340.A500@localhost> MIME-Version: 1.0 Message-Id: <0008292054020M.01642@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 A pass key is a removable knob. On Tue, 29 Aug 2000, you wrote: > This categorization scheme has an interesting property. A general > pass key is a "knob". That might or might not be a problem with the > classification. I'm not sure. > > This doesn't fit exactly with the common notions of "knob" and "key." > Perhaps skeleton keys are really keys and not "knobs," I'm not sure. > I don't think these "who gets in where" and "does opening one door > *predictably* open them all?" classifications agree in all cases, but > they do agree about CSS: door knob! > > > Paul Fenimore -- Russell (James) 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 Aug 29 23:48:39 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA16534 for dvd-discuss-outgoing; Tue, 29 Aug 2000 23:48:39 -0400 Received: from smtp05.primenet.com (smtp05.primenet.com [206.165.6.135]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id XAA16531 for ; Tue, 29 Aug 2000 23:48:33 -0400 Received: (from daemon@localhost) by smtp05.primenet.com (8.9.3/8.9.3) id UAA05161 for ; Tue, 29 Aug 2000 20:49:07 -0700 (MST) Received: from sessions.phx.primenet.com(206.132.239.114), claiming to be "heorot.lumbercartel.com" via SMTP by smtp05.primenet.com, id smtpdAAAZYaadk; Tue Aug 29 20:49:04 2000 Received: from frankenstein.lumbercartel.com (IDENT:dcs@frankenstein.lumbercartel.com [192.168.6.2]) by heorot.lumbercartel.com (8.9.3/8.8.7) with SMTP id UAA10228 for ; Tue, 29 Aug 2000 20:48:53 -0700 From: "D. C. Sessions" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Hmmm... what's a key? Date: Tue, 29 Aug 2000 20:47:45 -0700 X-Mailer: KMail [version 1.0.29] Content-Type: text/plain References: In-Reply-To: MIME-Version: 1.0 Message-Id: <00082920485100.03902@frankenstein.lumbercartel.com> Content-Transfer-Encoding: 8bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, 29 Aug 2000, Steve Stearns wrote: > On Tue, 29 Aug 2000, John Galt wrote: > > > If it's the keys you want, wouldn't a copy of the controller ROM work just > > as well? I'm pretty sure that the player dealers will be glad to sell > > you one if you offer to pay a largely inflated price for it (10X cost > > minimum...), and they will probably even throw in a licensing agreement to > > you if you make it worth their while... > > Here's a thought. If you buy a DVD player for either your computer or > your home entertainment center, that player has a licensed copy of the > keys, right? So why wouldn't you be permitted to use DeCSS? If > authorization is conveyed in the purchase of a player, authorization is > granted when you buy your DVD drive. One more time, This is not about infringement. It is about trafficing in circumvention devices. -- | Engineers solve problems -- it's what we do. | | Do you want to be a problem? | | D. C. Sessions === dcs@lumbercartel.com | From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 30 00:11:52 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA16734 for dvd-discuss-outgoing; Wed, 30 Aug 2000 00:11:52 -0400 Received: from web6404.mail.yahoo.com (web6404.mail.yahoo.com [128.11.22.152]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id AAA16731 for ; Wed, 30 Aug 2000 00:11:51 -0400 Message-ID: <20000830041216.15379.qmail@web6404.mail.yahoo.com> Received: from [24.128.190.210] by web6404.mail.yahoo.com; Tue, 29 Aug 2000 21:12:16 PDT Date: Tue, 29 Aug 2000 21:12:16 -0700 (PDT) From: Pete Broule Subject: RE: [dvd-discuss] DVD CCA Opposition to Pavlovich Quash Motion To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > > Here are some thoughts in regards to this: > > * Suppose I shoplift a DVD, and play it on my system. In > addition to shoplifting, I could be hit with a circumvention > charge under 1201. Maybe someone like Kaplan could think of that, but I doubt anyone could find circumvention here under a "reasonable" interpretation. (I'm assuming you were going to play it on a licensed player? -- not that I think it should matter) There was no TPM restricting your access here (CSS wasn't restricting your access, you might not even be aware of its existence, and would need to circumvent it). What you circumvented was the shop's security, and that's a PM, but not a TPM. > > * Region coding is a rights TPM. The copyright owner uses a > region code to declare which places the DVD may be sold. > Because of the first sale rule, the copyright owner cannot > prohibit the buyer from reselling it outside of the > original region, nor can the copyright owner prohibit someone > from fair use. I tend to think that region coding is another TPM that is not covered by 1201. As I understand, the copyright owner's exclusive right here is limited to vending the work until the first sale. After the first sale, the exclusive right for vending is lost, thus region coding doesn't protect a right. > > * The udf filesystem is a "TPM" that is not covered by 1201. > There is no crime to circumventing it by executing DeCSS > on Windows and playing the resulting mp2 on Linux. > > The first point is just a restatement of something we have argued > many times. CSS is not a TPM meriting full protection, at best, it > is a right TPM (though this could also be debated). > __________________________________________________ Do You Yahoo!? Yahoo! Mail - Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 30 00:21:22 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA17039 for dvd-discuss-outgoing; Wed, 30 Aug 2000 00:21:22 -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 AAA17036 for ; Wed, 30 Aug 2000 00:21:21 -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 AAA24048 for ; Wed, 30 Aug 2000 00:21:48 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id AAA08195; Wed, 30 Aug 2000 00:21:48 -0400 (EDT) Date: Wed, 30 Aug 2000 00:21:48 -0400 (EDT) Message-Id: <200008300421.AAA08195@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Hmmm... what's a key? In-Reply-To: <20000829213340.A500@localhost> References: <200008272358.TAA20573@soggy-fibers.ai.mit.edu> <20000827230336.B11216@eldritchpress.org> <200008281217.IAA22545@soggy-fibers.ai.mit.edu> <20000828155742.B11959@eldritchpress.org> <200008291500.LAA03330@soggy-fibers.ai.mit.edu> <200008291619.MAA04183@soggy-fibers.ai.mit.edu> <200008291756.NAA04709@soggy-fibers.ai.mit.edu> <20000829170309.A2223@localhost> <20000829172928.A2567@localhost> <200008300144.VAA06936@soggy-fibers.ai.mit.edu> <20000829213340.A500@localhost> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Paul Fenimore writes: > If there was _a_ secret that opened most or all of the doors, then I > would call that secret/ident-info a "knob." I wouldn't, if the distribution of that secret were limited. Unix systems have root passwords[*], but they also have access controls; this is not a contradiction. [*] The moral equivalent of the "administrator" password on Windows servers; a password which effectively grants access to everything. > I think the tests I've outlined also avoid the "trivial to defeat" > trap(?). The difference I'm concentrating on is whether or not it is > possible to *predict* ahead of time, within a narrow bound rather than > simply an upper bound, how much time/effort/resources will be required > to open the door. Hmmm... I have a hard time understanding how you'd tell that an attack has some statistical distribution of success times --- you can always make the time required to crack a system absolutely constant, by adding a delay loop. (Which is the only way to make *anything* run in an absolutely predictable time on most modern computers, given caching effects and interference from background processes). Besides, the outcome of your test depends in part on the state of technology at any given time --- some smartcard systems, for instance, got a lot easier to defeat when invasive attacks became known. I don't recall whether the statistics of the time required to get the key became more predictable with any particular one of these attacks, but it's certainly plausible; IIRC they work by using covert channels, to extract key information from the card directly --- which means that it could conceivably take an exactly predictable, fixed time to suck all the key information out of a card which used the best crypto known to the maker at its time of manufacture (because the manufacturer didn't jam some covert channel which no one else had yet learned how to exploit). So one possible problem with your test is that its outcome can change over time --- resulting in the untenable situation that a statutorily protected TPM could *lose* its protection when a feasible attack on it becomes known (which is when statutory protection would be needed most, at least from the point of view of the copyright holder). Which is probably why the law's definitions of "effective ..." don't talk at all about how hard it is to defeat a TPM. > This categorization scheme has an interesting property. A general > pass key is a "knob". That might or might not be a problem with the > classification. I'm not sure. I think it is --- viz. the root password example above. BTW, one nice thing about my "key" definition is that it yields a definition of "effective access control" which is pretty much the same asthe one I got in my authority paper by parsing the ... oddly worded definition in the statute. It's not obvious to me how to derive your definition that way. rst From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 30 00:24:32 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA17085 for dvd-discuss-outgoing; Wed, 30 Aug 2000 00:24:32 -0400 Received: from smtp01.primenet.com (smtp01.primenet.com [206.165.6.131]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id AAA17082 for ; Wed, 30 Aug 2000 00:24:30 -0400 Received: (from daemon@localhost) by smtp01.primenet.com (8.9.3/8.9.3) id VAA00988 for ; Tue, 29 Aug 2000 21:24:23 -0700 (MST) Received: from sessions.phx.primenet.com(206.132.239.114), claiming to be "heorot.lumbercartel.com" via SMTP by smtp01.primenet.com, id smtpdAAARraWzb; Tue Aug 29 21:23:47 2000 Received: from frankenstein.lumbercartel.com (IDENT:dcs@frankenstein.lumbercartel.com [192.168.6.2]) by heorot.lumbercartel.com (8.9.3/8.8.7) with SMTP id VAA10301 for ; Tue, 29 Aug 2000 21:24:11 -0700 From: "D. C. Sessions" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] DVD CCA Opposition to Pavlovich Quash Motion Date: Tue, 29 Aug 2000 21:13:35 -0700 X-Mailer: KMail [version 1.0.29] Content-Type: text/plain References: <200008300258.WAA07506@soggy-fibers.ai.mit.edu> In-Reply-To: <200008300258.WAA07506@soggy-fibers.ai.mit.edu> MIME-Version: 1.0 Message-Id: <00082921162601.03902@frankenstein.lumbercartel.com> Content-Transfer-Encoding: 8bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, 29 Aug 2000, Robert S. Thau wrote: > Harold Eaton writes: > > Robert S. Thau wrote: > > > > >I read it as saying, roughly, "fair use is a defense to circumvention > > >if the TPM being circumvented would have granted *some* sort of access > > >to the work, in the ordinary course of its operation." > > > > That's an interesting reading, possibly even a sensible one. > > But the only support for it in the statute is the contradiction > > between 1201(a)(1) and 1201(c)(1). But if that is what the > > statute means, why does it not apply to 1201 (a)(2) and 1201 (b) ? > > Perhaps because it's vague? > > Well, remember, the courts enforce vague laws all the time --- I > believe legislative history is used by the courts when necessary to > clear up ambiguities in the language of the statute (and may be > ignored when the language of the statute is clear). > > But looking back at the full report, it's possible I may have trimmed > the text too aggressively. The full paragraph is: > > Paragraph (a)(1) does not apply 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. In a fact situation where the access is authorized, the > traditional defenses to copyright infringement, including fair use, > would be fully applicable. So, an individual would not be able to > circumvent in order to gain unauthorized access to a work, but > would be able to do so in order to make fair use of a work which he > or she has acquired lawfully. > > So it's possible that they mean that an individual "would not be able > to circumvent" an access control, "but would be able to [circumvent]" > other technological measures (e.g. region coding). > > Which is odd from the point of view of the MPAA, because the sole > point of CSS, from their point of view, is to be tied to other > technical measures --- but it may make more sense. > > On the other hand, if that's what it means, then it's poorly worded > even by the word-salad standard of the DMCA; the implication of "to do > so" is that the same action is taken in both cases --- that the same > technical measure is being circumvented. So the way I read this is that if one has purchased a DVDCCA-blessed DVD player and a CSS DVD, one is authorized to decrypt the DVD. If one then used a different player to decrypt the DVD, there is no objection under the law. Which still has no bearing on whether the device used for the latter decryption is a circumvention device, and thus an illegal item of trade. -- | Engineers solve problems -- it's what we do. | | Do you want to be a problem? | | D. C. Sessions === dcs@lumbercartel.com | From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 30 00:28:04 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA17181 for dvd-discuss-outgoing; Wed, 30 Aug 2000 00:28:04 -0400 Received: from smtp03.primenet.com (smtp03.primenet.com [206.165.6.133]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id AAA17178 for ; Wed, 30 Aug 2000 00:28:03 -0400 Received: (from daemon@localhost) by smtp03.primenet.com (8.9.3/8.9.3) id VAA20391 for ; Tue, 29 Aug 2000 21:27:21 -0700 (MST) Received: from sessions.phx.primenet.com(206.132.239.114), claiming to be "heorot.lumbercartel.com" via SMTP by smtp03.primenet.com, id smtpdAAASsaiZN; Tue Aug 29 21:27:20 2000 Received: from frankenstein.lumbercartel.com (IDENT:dcs@frankenstein.lumbercartel.com [192.168.6.2]) by heorot.lumbercartel.com (8.9.3/8.8.7) with SMTP id VAA10330 for ; Tue, 29 Aug 2000 21:28:24 -0700 From: "D. C. Sessions" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Code and assassins Date: Tue, 29 Aug 2000 21:22:59 -0700 X-Mailer: KMail [version 1.0.29] Content-Type: text/plain References: <20000829175903.8720.qmail@web514.mail.yahoo.com> In-Reply-To: <20000829175903.8720.qmail@web514.mail.yahoo.com> MIME-Version: 1.0 Message-Id: <00082921282202.03902@frankenstein.lumbercartel.com> Content-Transfer-Encoding: 8bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, 29 Aug 2000, Bryan Taylor wrote: > --- "Robert S. Thau" wrote: > > > I'll admit to knowing less about software patent law than I probably > > should just working in the field, but this is, at least, not my > > impression of how those cases have turned out so far. > > Does anybody know what the important cases in the patenting of software > are? It might be helpful to draw from them. The watershed in software patents was when people started patenting incredibly complex pieces of single-function hardware which carried out the same processes as the desired software. Doing the same thing in software had already been established as infringment, so the same result as a software patent was accomplished within existing patent practices. In principle it's possible to implement ANY software in dedicated hardware. Except that these methods were a royal pain for the Patent Office and everyone else, so the Court accepted the inevitable. -- | Engineers solve problems -- it's what we do. | | Do you want to be a problem? | | D. C. Sessions === dcs@lumbercartel.com | From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 30 01:41:23 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id BAA17565 for dvd-discuss-outgoing; Wed, 30 Aug 2000 01:41:23 -0400 Received: from mail.virtualrecordings.com ([209.0.104.81]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id BAA17562 for ; Wed, 30 Aug 2000 01:41:22 -0400 Received: from eff.org [209.0.105.216] by mail.virtualrecordings.com with ESMTP (SMTPD32-6.00) id AE1BC6CC00AC; Tue, 29 Aug 2000 22:39:39 -0700 Message-ID: <39AC9DA0.3E0F5E31@eff.org> Date: Tue, 29 Aug 2000 22:37:37 -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] Open Source Under Attack: LiVid Leader Awaits Court Ruling Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu EFF DVD Update: California DeCSS Trade Secret Litigation -- 08-29-00 Open Source Under Attack: LiVid Leader Awaits Court Ruling Santa Clara County Judge William Elfving stated today that he would rule in a few days on LiVid Project Leader Matthew Pavlovich's motion to quash the case DVD-CCA brought against him for posting DeCSS. Tuesday morning a hearing was held on the issue of whether the state of California and DVD-CCA can force Pavlovich, an individual with no contacts to the state, to appear in a California court and defend himself. Allonn Levy of Huber Samuelson "appeared specially" for Matthew Pavlovich and Robin Gross of EFF appeared on behalf of Andrew Bunner to argue that it is fundamentally unfair for a California court to assert jurisdiction over individuals from all over the world. Open Source Initiative President Eric Raymond publicly responded to DVD-CCA's erroneous statements made against the open source community in its recent California legal filings: Date: Mon, 28 Aug 2000 17:54:06 -0400 From: "Eric S. Raymond" To: wire-service@snark.thyrsus.com Subject: Open Source Initiative rejects defamation by DVDCCA The DVDCCA states in its brief at : "Defendant Pavlovich is a leader in the so-called "open source" movement, which is dedicated to the proposition that material, copyrighted or not, should be made available over the Internet for free." This claim is both incorrect and defamatory. The Open Source Initiative, a 501(c)3 nonprofit organization that is the custodian of of the Open Source Definition and widely recognized in the open source community for its educational and advocacy work on behalf of the that community, takes the strongest possible exception to it. We in the open source movement respect copyright; in fact, we use copyright law to underpin the licenses that define the social contract of our community. The basis of Matthew Pavlovich's work, and of our community's opposition to the DVDCCA lawsuit, lies in that social contract; a belief, founded in both engineering pragmatics and ethical conviction, in the *voluntary* sharing of program source code and the *voluntary* renunciation of secrecy. The core principles of open source are transparency, responsibility, and autonomy. As open source developers, we expose our source code to constant scrutiny by expert peers. We stand behind our work with frequent releases and continuing inputs of service and intelligence. And we support the rights of developers and artists to make their own choices about the design and disposition of their creative work. The results of this policy of openness can be seen in the enormous public benefit that has come through the open-source movement's works: the World Wide Web, the core software of the Internet itself, and the Linux operating system. While we advocate the full disclosure of code, and we support Matthew Pavlovich's right to reverse-engineer proprietary technology in order to permit Linux users to play DVDs that they legally own on machines they legally own, we oppose piracy and reject as a prejudicial falsehood the DVDCCA's attempts to tie the open source community to copyright violation. Issued by and for the Board of Directors of OSI by Eric S. Raymond, President 28 August 2000 ------------------------------------ Matthew Pavlovich's Motion to Quash for lack of jurisdiction: http://www.eff.org/pub/Intellectual_property/Video/DVDCCA_case/20000802_pavlovich_quash_motion.html DVD-CCA's Opposition to Pavlovich's Motion: http://cryptome.org/dvd-v-521-opq.htm EFF Archive for DVD-CCA Cal. trade secret case: http://www.eff.org/IP/Video/DVDCCA_case/ EFF's DVD Archive: http://www.eff.org/IP/Video/ Join EFF's mailing list for the latest news by receiving the regular DVD updates directly in your inbox. To subscribe, email majordomo@eff.org and put this in the text: subscribe cafe-news From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 30 01:48:04 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id BAA17739 for dvd-discuss-outgoing; Wed, 30 Aug 2000 01:48:04 -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 BAA17736 for ; Wed, 30 Aug 2000 01:48:03 -0400 Message-ID: <20000830054800.1371.qmail@web512.mail.yahoo.com> Received: from [64.81.25.36] by web512.mail.yahoo.com; Tue, 29 Aug 2000 22:48:00 PDT Date: Tue, 29 Aug 2000 22:48:00 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] 3rd Party Speech Veto Unconsitutional -- Young v Simi Valley To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-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: > Probably it would be here. I've done it if the attorney, or the > client, has taken a position in another case which is contrary to the > position in the current case, but other than that, it would just come > off as a cheap shot. I can see how it would. On the other hand, is there any way to get our hands on ABC's amicus in the "Hit Man" case? __________________________________________________ Do You Yahoo!? Yahoo! Mail - Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 30 01:56:43 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id BAA17852 for dvd-discuss-outgoing; Wed, 30 Aug 2000 01:56:43 -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 BAA17849 for ; Wed, 30 Aug 2000 01:56:42 -0400 Received: from ppp.anonymizer.com (c07-110.015.popsite.net [64.24.78.110]) by cyberpass.net (8.8.8/8.7.3) with ESMTP id WAA12220; Tue, 29 Aug 2000 22:59:09 -0700 (PDT) Message-Id: <4.3.2.7.2.20000829225434.04a54360@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, 29 Aug 2000 22:57:00 -0700 To: dvd-discuss@eon.law.harvard.edu, dvd-discuss@eon.law.harvard.edu From: "James S. Tyre" Subject: Re: [dvd-discuss] 3rd Party Speech Veto Unconsitutional -- Young v Simi Valley In-Reply-To: <20000830054800.1371.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 10:48 PM 8/29/2000 -0700, Bryan Taylor wrote: >I can see how it would. On the other hand, is there any way to get our >hands on ABC's amicus in the "Hit Man" case? It would be in the court file, all of which is public record. (Sorry, I'm not remembering which court.) Or contact the attorneys most likely to be friendly. At least with other attorneys, they're usually pretty good about just sending a copy, can't say what they'd do with a request from one of, um, you. ;-) -------------------------------------------------------------------- James S. Tyre mailto:jstyre@jstyre.com 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 Aug 30 02:09:19 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id CAA17933 for dvd-discuss-outgoing; Wed, 30 Aug 2000 02:09:19 -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 CAA17930 for ; Wed, 30 Aug 2000 02:09:04 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id CAA15777 for dvd-discuss@eon.law.harvard.edu; Wed, 30 Aug 2000 02:19:08 -0400 Date: Wed, 30 Aug 2000 02:19:03 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Bad Frog Message-ID: <20000830021902.N12910@eldritchpress.org> References: <20000830014544.16781.qmail@web511.mail.yahoo.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <20000830014544.16781.qmail@web511.mail.yahoo.com>; from bryan_w_taylor@yahoo.com on Tue, Aug 29, 2000 at 06:45:44PM -0700 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, Aug 29, 2000 at 06:45:44PM -0700, Bryan Taylor wrote: > Those of you who contemplate kicking back with a cold one and flipping > the judge a finger should consider doing so with a brew from Bad Frog > Brewery. :-] [Read the case] > > Those of you who want to see an example where "narrow tailoring" > rebuffs speech restrictions that are "more extensive than necessary" in > favor of "less intrusive alternatives" should read: > > Bad Frog Brewery, Inc. v. N.Y. Liquor Authority > No. 97-7949 (2d Cir. 1998) > http://www.tourolaw.edu/2ndCircuit/January98/97-79490.html One beer label carefully crafted to avoid any federal lawsuits is from Old Buzzard Bay Brewery's pale ale. It shows a map of the Massachusetts coastline, and on the back of the bottle states, "Chart on front not for navigational purposes." (QE2 ran fast aground in that bay and blamed charts--not clear which.) Could DeCSS be put on a beer label with a similar warning? How about the DMCA? From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 30 02:46:25 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id CAA18249 for dvd-discuss-outgoing; Wed, 30 Aug 2000 02:46:25 -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 CAA18246 for ; Wed, 30 Aug 2000 02:46:14 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id CAA15836 for dvd-discuss@eon.law.harvard.edu; Wed, 30 Aug 2000 02:56:18 -0400 Date: Wed, 30 Aug 2000 02:56:12 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] DVD CCA Opposition to Pavlovich Quash Motion Message-ID: <20000830025612.O12910@eldritchpress.org> References: <200008300258.WAA07506@soggy-fibers.ai.mit.edu> <00082921162601.03902@frankenstein.lumbercartel.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <00082921162601.03902@frankenstein.lumbercartel.com>; from dcs@mailhost.lumbercartel.com on Tue, Aug 29, 2000 at 09:13:35PM -0700 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, Aug 29, 2000 at 09:13:35PM -0700, D. C. Sessions wrote: > On Tue, 29 Aug 2000, Robert S. Thau wrote: > > ... > > But looking back at the full report, it's possible I may have trimmed > > the text too aggressively. The full paragraph is: > > > > Paragraph (a)(1) does not apply 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. In a fact situation where the access is authorized, the > > traditional defenses to copyright infringement, including fair use, > > would be fully applicable. So, an individual would not be able to > > circumvent in order to gain unauthorized access to a work, but > > would be able to do so in order to make fair use of a work which he > > or she has acquired lawfully. > > So the way I read this is that if one has purchased a DVDCCA-blessed > DVD player and a CSS DVD, one is authorized to decrypt the DVD. If one > then used a different player to decrypt the DVD, there is no > objection under the law. Yes, this is a reasonable interpretation, I think. As long as the player, disc, and drive were "acquired lawfully" then making fair use by "circumvention" (or "decryption") is lawful. I can find no better, self-consistent interpretation, and one that relates to the law as written in some meaningful way. Which directly has to support our first sale doctrine. The "consent" added beyond first sale is bogus--it is first sale which conveys the authority. > Which still has no bearing on whether the device used for the latter > decryption is a circumvention device, and thus an illegal item of trade. Yes it does, because they don't refer to "trafficking" here, they refer to "would be able to so so [circumvent access control] in order to make fair use of a work...acquired lawfully." Whether or not the circumvention is a device (they don't specify) then it is lawful in this case. If the act is lawful then use must be lawful then trafficking in it must be. It is the "work" which has to be "acquired lawfully," not the circumvention technology, in this case. If this was not thought to be in the law then it would not be in the committee report. Robert, you are quite correct that this is the committee report, not the statute. What I am trying to get at is that this flimsy support is the only grounds for Kaplan's interpretation. I think now we can show that Congress did not intend his interpretation at all (what I posited in 7. of my first list). Instead, we have to go with an interpretation which backs up his reference to possessing the three keys lawfully. And this report specifically supports us on first sale being that lawful authority. On the other hand, it is still very very true that some in Congress may have failed to understand this, and instead crafted the law in such a way they thought this clause of first sale did not apply to access control. But if so then they merely passed a self-contradictory bill. MPAA thought it controlled access by means of DVD-CCA licenses, and that fair use was now dead along with Betamax; at least many in Congress thought access was controlled by first sale and that fair use was preserved as in Betamax; some set of these thought that the technical protection mechanism was sufficiently strong that this case would not arise, but that if it ever did the law could be interpreted selectively. Note the qualifier "in a fact situation"--it appears that Congress intended a judge to weigh facts in an individual case, not apply dicta blanketwise to devices without consideration of individual facts. The "trafficking" and "device" stuff must have been tacked on without any consideration of whether they fit with the rest of the logic. From dvd-discuss-owner@eon.law.harvard.edu Wed Aug 30 02:59:11 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id CAA18705 for dvd-discuss-outgoing; Wed, 30 Aug 2000 02:59:11 -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 CAA18702 for ; Wed, 30 Aug 2000 02:58:56 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id DAA15892 for dvd-discuss@eon.law.harvard.edu; Wed, 30 Aug 2000 03:09:00 -0400 Date: Wed, 30 Aug 2000 03:08:55 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] DVD CCA Opposition to Pavlovich Quash Motion Message-ID: <20000830030855.P12910@eldritchpress.org> References: Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: ; from Ray@clearway.com on Tue, Aug 29, 2000 at 11:21:46PM -0400 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, Aug 29, 2000 at 11:21:46PM -0400, Leland Ray wrote: >... > > Access TPMs have full protection under the DMCA. According to > Kaplan (citing the Judiciary Committee Report), fair use > is not a defense to circumvention. Except if the "work" has been "lawfully acquired." On the other hand, you are correct that fair use is not a defense if "access" was not "authorized" (by first sale). We would normally say that this is just fair use. The report, curiously, seems to call it "circumvent" in some legal way. Possibly there is some confusion because in this case there has to be some decryption in both access and in copying. It is perhaps not so easy to separate them. But as you say in another connection, perhaps this does not completely take care of interpretation of "trafficking" and "devices." So maybe this needs more elaboration.